In a powerful speech to the court Friday, Williamson County District Attorney Shawn Dick delivered a sweeping condemnation of the case that led to Greg Kelley’s conviction on child sexual assault charges, saying he thinks the bulk of the criminal justice system — from police, prosecutors and Kelley’s defense lawyer to a juror — failed.
The comments came on the third and final day of a hearing that revealed what officials — including a Texas Ranger — described as frightening deficiencies in the case. Dick had said at the beginning that he was keeping an open mind and viewed the proceeding in which Kelley is seeking his freedom as a fact-finding mission.
By Friday, his tone bordered on disbelief.
“My commitment is to restore the public’s faith and trust in our criminal justice system,” said Dick, who took office in January and prioritized the Kelley case. “I can’t do that by defending a prosecution like Mr. Kelley’s.”
In his prepared remarks, which spanned about five minutes, Dick apologized to the family of the 4-year-old sexual abuse victim whose outcry sent Kelley to prison for 25 years.
“It’s important to know this whole mess is not your fault,” he said. “We want to make sure we fix this system so another family does not have to go through the same thing.”
Dick then singled out others, including the Cedar Park police investigation, which he called “wholly deficient,” and he said the prosecutors in the case erred by going forward with scant evidence and by exercising “tunnel vision and pushing this case to trial.”
“I would not have tried this case,” Dick later told reporters.
Kelley’s original trial lawyer, Patricia Cummings, who briefly testified Thursday, also had all the information she needed to better defend her client, including the possibility that someone other than Kelley had committed the crime, Dick said.
Dick also blamed a juror who said he didn’t think Kelley was guilty but voted to convict under pressure from others on the jury.
“We can, and we must, do better,” the DA concluded.
Dick reopened the case this spring after new information revealed someone else might have committed the crime. Prosecutors have previously identified as a suspect Johnathan McCarty, whose mother operated an in-home day care facility where the abuse happened, and a Texas Ranger testified that an additional suspect also exists. The Ranger said he couldn’t rule out Kelley.
State District Judge Donna King will decide in coming weeks whether to recommend Kelley’s conviction be overturned. The state’s highest criminal court, the Texas Court of Criminal Appeals, will have the final say in a process that could take months.
King promised to work quickly, but said she wants to be thorough. She gave lawyers an Aug. 18 deadline to present their proposed factual findings, which both sides must agree upon for her to free Kelley on bail.
“I know there is a lot of anxiety and sense of urgency, and I want everyone to understand that you’re not alone in those feelings,” King said. “The court is anxious and has a sense of urgency to reach some finality in this matter for Mr. Kelley that has gone on for far too long.”
On Friday, after days of testimony and before Dick’s address, one of Kelley’s lawyers, Keith Hampton, made his final pitch to the judge. Using a PowerPoint presentation, the appeals lawyer went through the various reasons he believes Kelley should be granted relief.
He repeated that Cedar Park police investigator Chris Dailey didn’t talk to other people who lived in the home where the abuse happened, didn’t consider other suspects, didn’t visit the scene, didn’t take photographs and didn’t use other law enforcement techniques often employed in investigations.
Kelley also deserves relief, he said, because an alternative suspect has been identified. McCarty lived in the home where the children attended day care, Hampton said. The victims both said the abuse occurred in a room with a crib, which was actually in Johnathan’s room, he said.
McCarty had pictures of naked children on his cellphone and desktop computer, Hampton said. When a Texas Ranger conducting a review of the case asked McCarty if he had such pictures on his desktop computer, McCarty answered, “Those have all been deleted,” Hampton said. He also said he believes the two victims were confused between McCarty and Kelley because the two shared similar facial features.
Meanwhile, Cummings failed Kelley during his trial, Hampton said. The lawyer, who had represented the McCarty family on criminal matters, refused to consider McCarty as a potential suspect.
These and other issues contributed to the wrongful conviction of Kelley, Hampton said.
“I think the system suffered a catastrophic failure,” he said.
Outside the courthouse, Kelley’s friends and family were jubilant and feel Kelley is on a path to vindication and freedom.
“We’ve waiting for so long to hear what we hear today, and I know it’s going to happen (Kelley’s release),” said Rosa Kelley, his mother. “It’s just a matter of a little more days.”