Attorneys seeking to overturn Greg Kelley’s child sex assault conviction on Thursday filed court records that provide details about a third suspect in the case.
That man, whose name has not been released by law enforcement, had a prior arrest on a charge of indecency with a child and had also lived in the Cedar Park home where the abuse is alleged to have happened. Yet he had never been investigated as a possible suspect in the crime before this year, the document said.
He has a criminal history that also includes a robbery conviction for which he was sent to prison, the court record says, but he was not scrutinized by detectives during the investigation that led to Kelley’s 25-year sentence for the sexual assault of a 4-year-old boy.
In August, a Texas Ranger who is reinvestigating the case said he has identified three suspects, including Kelley and his friend Johnathan McCarty, whose mother operated the daycare where the abuse allegedly occurred, but authorities have not publicly named the third person.
The American-Statesman is not publishing the name of the third suspect because he has not been charged with a crime relating to the abuse or confirmed by law enforcement as a suspect.
Kelley’s attorney, Keith Hampton, is making the last-minute allegation as part of his claims that Kelley’s attorney during his 2014 trial did not properly represent him and that his conviction should be overturned.
Hampton has previously said Kelley’s trial lawyer, Patricia Cummings, had a conflict of interest because she had represented a family member of McCarty’s.
In his newest 50-page filing, Hampton goes further: He says that Cummings represented the third suspect in a series of criminal cases before Kelley’s case and that she did not pursue an investigation against him because of that prior relationship.
“She could not advance Greg Kelley’s interests without damaging her former client’s interest,” Hampton wrote. “Her loyalty to Greg Kelley was diluted by her continuing duty to her former client.”
Cummings’ handling of Kelley’s trial has been a particularly combustible aspect of the controversial case, which has drawn intense emotions on all sides.
Cummings is a well-known and well-regarded attorney who has received support from some of the legal community’s most notable defense lawyers for her handling of the case. She has previously said that she did not aggressively pursue McCarty as a possible suspect because Kelley dissuaded her from doing so and that no one provided enough evidence for her to act upon.
On Thursday, Dallas attorney Gary Udashen, who represents Cummings, said that although there was no evidence implicating the third man at the time of the trial, “it is significant that they are now saying that he is the one who did this. We all agree that if (this man) committed the offense, then Greg’s conviction should certainly be reversed.”
The filing comes as a Monday deadline approaches for state District Judge Donna King to issue recommendations to the state’s highest criminal court about Kelley’s case. She could ask the Court of Criminal Appeals to uphold or overturn the conviction or suggest that Kelley be declared innocent.
Hampton said he is including information about the man in his filings to bolster claims that Cummings did not act appropriately. He said he didn’t previously do so because he was focused on other evidence that he said shows Kelley did not assault the boy.
According to Hampton’s filing, Cummings “made some rudimentary investigation” of McCarty during Kelley’s case but did not do so for the other man.
Details of the third suspect’s indecency with a child charge and how it was resolved were not available because he was a juvenile when he was arrested, and juvenile court records are kept confidential under state law.
State records show that the man served a 7-year sentence for aggravated robbery in Williamson County and was granted parole in March 2013 — about four months before Kelley’s arrest in the sex assault case.
In 2014, the man pleaded guilty to possession of less than 2 ounces of marijuana and was sentenced for 45 days in jail. In January, he pleaded guilty to driving while intoxicated and was sentenced to 30 days in jail.
Kelley remains out of jail on bond while his appeal is pending.
Dick, who took office in January, has previously said that he believes Kelley’s conviction was the result of a breakdown in the Williamson County justice system, including how the Cedar Park Police Department handled the case from the start.
Cedar Park officials have hired an outside consultant to review the department’s policies and procedures, but that process is not complete.