Greg Kelley faces uphill battle for freedom


Highlights

Courts will decide whether Kelley gets new trial, exoneration or nothing.

Kelley must get through two courts to earn freedom: a district judge and the Texas Court of Criminal Appeals.

Identification of new suspect could influence the court decision.

Things are looking better for Greg Kelley than they have in a long time.

Authorities have zeroed in on a suspect they believe might have committed the crimes for which Kelley is imprisoned. He soon will have his first court hearing on the merits of his case in three years. His supporters are holding rallies demanding his release.

But winning exoneration three years after being convicted in the sexual assault of a child will be an uphill battlelittered with obstacles, any one of which could derail Kelley’s hopes to rejoin society.

His lawyers are fighting for his release on multiple fronts. They’re saying that Kelley didn’t do it — and that someone else did. They’re saying that prosecutors played dirty — and that Kelley’s trial lawyer messed up.

To get anywhere, Kelley will have to convince a district court judge that he, at the very least, deserves a new trial. Then the Texas Court of Criminal Appeals, the state’s highest appellate court for criminal matters, would have to sign off on the drastic step, something the conservative-dominated court rarely does.

Even then, Kelley might never be deemed innocent.

“There are whole lot of baby steps involved, and they have to hit every nail on the head until finally he gets the results he’s looking for,” said Rick Wetzel, an appellate lawyer who formerly worked for the appeals court and isn’t involved in the Kelley case. “There is no guarantee at all. These cases are full of pitfalls.”

Judicial experts say that in most cases in which a conviction is overturned, it is done so with the discovery of new forensic evidence — most commonly DNA — or when a crime victim recants statements about what happened.

Kelley has neither. But over the past several months, his defense team has uncovered evidence that prosecutors say they find credible and might raise reasonable doubt about Kelley’s guilt.

Despite the long odds, Kelley says he is optimistic.

“My hope has skyrocketed that I’m going home before I’m 44,” Kelley told the American-Statesman last week in his first sit-down prison interview.

Lives torn asunder

Kelley’s troubles began in 2013. At that time, Kelley — then an 18-year-old Leander High School senior set to play football at the University of Texas at San Antonio — was temporarily living with a teen named Johnathan McCarty at his Cedar Park house, where McCarty’s mother ran an in-home day care center.

About a month after Kelley moved out, two 4-year-old boys accused Kelley of sexually abusing them. One of them recanted during his trial.

In July 2014, a Williamson County jury found Kelley guilty of two counts of super aggravated sexual assault of a child. He took a sentencing agreement that sent him to jail for 25 years and gave up the right to appeal that sentence. He didn’t plead guilty to the crime.

For three years, Kelley’s appeals team tried unsuccessfully to get a new trial.

But in May, Williamson County District Attorney Shawn Dick announced that a new suspect in the crime had emerged, and it was McCarty. Court documents written by Kelley’s defense attorneys allege that pictures of naked toddlers had been discovered on McCarty’s cellphone and that several people claim to have heard him confess to the crime after Kelley was convicted.

McCarty, 19, was arrested on May 25 on a probation violation for an unrelated drug crime. His bail has been set at $450,000. He hasn’t been charged with anything in the sexual assault case.

The Texas Rangers have been investigating the case for months. That helps in Kelley’s appeals, said Samuel Gross, a University of Michigan law professor who is co-founder and senior editor of the National Registry of Exonerations.

“It’s a big step,” he said.

State District Judge Donna King has granted Kelley an August hearing on the evidence, which could be expedited because of new information prosecutors continue to receive.

Legal hurdles are many

Kelley’s lawyers are following several paths, each of which could win or lose their road to victory. First, they claim Kelley is innocent. They maintain that the new evidence against McCarty exonerates Kelley.

But experts say McCarty’s defense will likely assert that, even with those allegations against him, there is still no proof that McCarty might have sexually assaulted a child at his mother’s day care center, leaving open the possibility that Kelley was still the perpetrator.

McCarty’s defense also would likely challenge the testimony of any witness who claims to have heard him confess, including the setting in which they heard him and whether anyone involved might have been under the influence of drugs or alcohol.

Kelley’s lawyers are also claiming prosecutorial misconduct and bad legal defense work contributed to what they feel is Kelley’s wrongful conviction. Williamson County prosecutors improperly admitted evidence that was supposed to be kept out of trial, according to a court document written by Kelley’s legal team. That evidence was the testimony of a witness who claimed Kelley lied, claiming he was a Marine sniper when he is not, the document states. Kelley’s trial attorney should have objected, but didn’t, his defense team says.

Proving inadequate defense or prosecutorial misconduct to a judge can be very difficult, Wetzel said.

“He and his lawyers have a tough burden to get where they’re trying to go,” he said.

During the hearing, King could decide that Kelley deserves a new trial or that he is innocent and should be freed.

But the Texas Court of Criminal Appeals would have to sign off on her decision. And the numbers show that the court isn’t friendly to such actions.

According to statistics from the Texas Office of Court Administration, defense attorneys have submitted an average of 4,263 such writs to the court each year in the past three years. Only two have been granted. Many were dismissed citing procedural errors such as missed deadlines, but an average of 3,233 per year have been denied on their merits.

Experts say that one important factor the appeals court will likely consider is the strength of the opinion of King and how stridently prosecutors contest Kelley’s conviction.

Road to exoneration

No one knows exactly how many people have been wrongfully convicted, Gross said. They also don’t have a clear picture of how many are exonerated because those numbers aren’t nationally reported. In 2016, at least 166 people were exonerated of crimes for which they were convicted, according to the national registry.

Among those were 52 murder convictions, 24 sex crimes, two manslaughter cases and 15 for other violent crimes, such as robbery or attempted murder.

Exonerations have become a major issue in Texas in recent years, with Michael Morton serving as the most well-known example of a wrongful conviction.

Morton was convicted in 1987 of murdering his wife in Williamson County.  In 2011, after DNA evidence cleared him, Morton was released from prison. Another man was later convicted of the crime, and Morton was declared innocent. The Williamson County prosecutor in the 1987 case was later found in contempt of court for withholding evidence.

That’s what Kelley wants in his case — to be deemed innocent.

But not all cases turn out that way. Getting out of jail and being exonerated are two different things, as the Fran and Dan Keller case illustrates.

In 1992, the Oak Hill couple were convicted of molesting numerous children as part of the 1980s hysteria in which child care providers across the country were accused of fantastical acts of abuse.

The Kellers spent more than 20 years in prison after three young children accused them of dismembering babies, desecrating corpses, videotaping orgies and serving blood-laced Kool-Aid in satanic rituals at their home-based day care.

They children also said they had taken plane trips to Mexico during which children were abused and returned to Austin in time for afternoon pickup by their parents.

In 2013, the couple were freed after an investigation revealed serious problems with their trial, including flawed medical exams of the children, testimony by a questionable expert on satanic ritual abuse and the prosecution withholding information from the defense. But while the Texas Court of Criminal Appeals threw out the Kellers’ convictions, they’ve never been deemed innocent.

That could potentially happen to Kelley. But his case could also theoretically mimic that of the ongoing legal battle of David Temple.

In 2007, the Katy man went to prison after being convicted of killing his wife eight years earlier. Belinda Temple, who was pregnant with the couple’s child, was shot in the head in their home.

David Temple was sentenced to life in prison.

But in 2016, the Texas Court of Criminal Appeals overturned his conviction on the basis that prosecutors had withheld significant evidence from the defense, including evidence of an alternative suspect. Temple is now free. It is unclear as to whether prosecutors will retry his case.

Wrongful convictions like that of Morton can happen for any number of reasons, such as poor interrogations, mistakes by eyewitnesses, misconduct by prosecutors or bad forensic evidence. Gross said that, although courts are still resistant to re-examining cases, judges have become more open to the fact that sometimes the system gets it wrong.

“I don’t know whether Mr. Kelley is guilty or not, but I hope the courts take it seriously,” he said.



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