DA reopens Greg Kelley sex assault case, names new suspect


Highlights

Williamson County DA: Significant evidence indicates someone other than Greg Kelley assaulted 4-year-old boy.

Kelley, now 22, has been behind bars for more three years and is in a Huntsville prison.

Three years ago, before a courtroom full of sobbing supporters, a Williamson County jury deemed Greg Kelley guilty of sexually abusing a 4-year-old boy at a Cedar Park day care.

Family and friends insisted he was innocent, a victim of bad policing and a misguided prosecution. Critics believed the former football star was guilty and that his supporters were deluding themselves. Kelley went to prison with a plea deal set to leave him behind bars for 25 years without parole.

Now the district attorney’s office is wondering if it put the wrong man in prison.

On Thursday, Williamson County authorities told the American-Statesman and KVUE-TV that they have reopened the investigation into the case and that they have unearthed a viable suspect in the case. That man, Johnathan McCarty, was arrested Thursday on a probation violation on a drug charge and held on $450,000 bond.

McCarty hasn’t been charged in the 2013 sexual assault. His mother ran the in-home day care in which the child was allegedly abused. McCarty lived there, and Kelley stayed in the home for several months.

Kelley’s mother, Rosa, said her heart is filled with joy that her son might soon be proven innocent: “Finally we are looking for justice and the truth.”

Williamson County District Attorney Shawn Dick said Texas Rangers in recent weeks have reviewed significant evidence that someone other than Kelley assaulted the 4-year-old boy. He said the evidence was initially brought to him by Kelley’s defense team.

“I thought it was credible enough to ask for an independent investigation and to bring the Texas Rangers in,” he said in an interview. “If we got it wrong, we need to do everything we can to make it right. And if we got it right, we need to be transparent so that the public understands we got the right person.”

Kelley’s problems began in 2013. That spring, Kelley, then an 18-year-old senior, was staying at the McCarty home because his parents were ailing. His mother was scheduled for major surgery to remove a brain tumor, while his father had suffered a stroke. At the time, the family no longer lived in the school district where he played football.

The 4-year-old told his mother in July 2013 that Kelley had sexually assaulted him twice at the day care. While investigators were questioning other children who had been at the facility, a second 4-year-old stepped forward and said Kelley made him touch him inappropriately, leading to an additional charge against him. That boy later recanted and that charge was dropped.

Prosecutors and police had no physical evidence against Kelley, and their case was built almost entirely on the testimony of the first boy.

In the weeks before trial, prosecutors offered Kelley a plea agreement that would have included probation with no prison time and a mandate that he register as a sex offender. Kelley, however, refused to plead guilty, telling the Statesman in the post-conviction interview: “I didn’t believe I deserved anything less than freedom.”

After deliberating for about 12 hours, a jury convicted him on two counts of super aggravated sexual assault. Kelley took a plea deal for 25 years in prison without parole. The trial deeply divided the community and triggered widespread debate about the strength of evidence used to convict him.

Kelley, now 22 and serving his sentence at a Huntsville prison, has maintained he was wrongly accused.

“I would never have done anything that sick,” told the Statesman in an August 2014 interview.

Police and prosecutors have been equally strident, with Cedar Park Police Chief Sean Mannix writing to Kelley supporters in December 2014: “I truly feel for the friends and family of Mr. Kelley who cannot bring themselves to believe that he could do such a thing.”

On Thursday, Mannix maintained that he still believes the justice system worked.

“We are a nation of laws, and I believe in the due process of laws,” Mannix said Thursday. “If this is part of that process that is available to Mr. Kelley, so be it. It doesn’t change my opinion of the trial or the outcome.”

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Dick said the case has been a top priority since soon after he took office in January. He wouldn’t discuss the handling of the case by previous prosecutors or Kelley’s defense attorneys. Kelley’s conviction has been the subject of several unsuccessful appeals.

According a court document being used to seek Kelley’s freedom, investigators have since discovered that McCarty’s cellphone had pictures of little children, including at least one picture of a naked child approximately 4 to 6 years old. His home computer allegedly had pictures of naked children and revealed frequent visits to porn sites.

Additionally, several months after Kelley was sent to prison, McCarty confessed to the crime at a party using explicit language, Kelley’s team allege in the document.

The document also claims that McCarty had SpongeBob pajamas, which the child said his attacker wore.

The 22-page writ, however, relies heavily on information detailing where Greg Kelley was during the time frame in which he is accused of molesting the young boy. It examines Kelley’s school, medical appointment and work records, as well as the child’s attendance at the day care in which Kelley is alleged to have harmed the boy.

According to the writ: “(Greg Kelley’s) cell phone records and data are most telling. From its December, 2012, activation through June 11, 2013 (the day Kelley left the home), Greg’s cell phone contains 9,000 images and 50,383 text messages. It reveals minutely his day-to-day affairs, and establishes that Greg was not in the McCarty home in March, April, or June during which any child could have been molested. These records are compelling evidence that Greg Kelley is innocent.”

The alleged incident was reported to the victim’s parents in July 2013. By then, the document states, Kelley had already moved out of the home.

McCarty, however, had plenty of opportunity to molest the boy, the document states. Kelley’s team says that McCarty had numerous absences from school and was late to school at times as well.

“The newly available evidence adds additional weight to the conclusion of Greg Kelley’s innocence,” the writ states. “Under the legal standard, Greg Kelley deserves to be declared innocent by this Court.”

Kelley’s attorney, Keith Hampton, said Thursday afternoon that he is grateful for a district attorney’s office with an open mind.

“A lot of this evidence, I tried to give to the last administration and they didn’t want to hear it,” Hampton said.

Former Williamson County District Attorney Jana Duty, whose office handled the trial, didn’t immediately reply Thursday to a request for comment.

Hampton said he blames the Cedar Park Police Department, rather than the Williamson County justice system, for what happened. The police never talked to Johnathan McCarty in their initial investigation, he said. At Kelley’s trial, the detective said he never looked for alternative suspects.

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“When investigators jump to conclusions and build a case to support those conclusions, that is the exact opposite of a complete investigation,” Hampton said.

He also said he won’t “breathe easy” until the Texas Court of Criminal Appeals decides to exonerate Kelley.

“There are judges on the Court of Criminal Appeals who believe that you can’t prove yourself innocent unless you have DNA evidence or a complete recantation by the accuser,” Hampton said. There is no DNA in Kelley’s case and no recantation, Hampton said.

Hampton said he will ask Dick to release Kelley on bail as soon as possible based on four claims: that Kelley is innocent, that new evidence has become available since the trial, that there was prosecutorial misconduct during the trial and that there was ineffective assistance to counsel.

Dick only has to accept one claim for Kelley to be released on bail, Hampton said.

The misconduct and ineffective assistance are both connected to a witness who testified during the trial that Kelley had once falsely told him at a gym that he was a Marine sniper, Hampton said. The testimony violated a rule that says prosecutors must try a case only based on the allegations within it and not on other incidents not related to it, Hampton said.

Thursday’s events will almost certainly renew questions about the justice system in a county that has in recent years been a focal point over the issue of wrongful convictions in Texas and nationally.

In 2011, Michael Morton was released from prison after serving 25 years for the murder of his wife — only to have another man convicted of the crime in 2013 after Morton was declared innocent. The Williamson County prosecutor in the 1987 case was later found in contempt of court for withholding evidence.

Kelley’s girlfriend, Gaebri Anderson, said during a telephone interview Thursday morning that she was relieved and excited that there was another suspect in the case. Anderson said she talks to Kelley every day for 20 minutes and has always believed in Kelley’s innocence.

“I’m at a loss for words,” she said. “I’ve waited for this for so long, and I can’t wait for the truth to come out and justice to be served.”

Kelley has read the Bible three times while he’s been in prison and started his own fitness class, Anderson said. “He knew this wasn’t the end and he wasn’t going to be there for 25 years.”

Anderson said Kelley went to prison “with open eyes and an open heart and wanting to learn and make the most of his time.”

Rosa Kelley said she has seen her son almost every weekend since his incarceration. Throughout the ordeal, she said, her son has remained positive.

“We trust the Lord,” she said. “He came and fought our battles and this all happened.”



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