A state district judge in Williamson County recommended Monday that the conviction of Greg Kelley — a former high school football star sent to prison on child sexual assault charges — be overturned and that he meets the state’s legal threshold to be declared innocent.
Had a jury been presented with certain evidence that never made it to trial, Judge Donna King wrote, “the state would not have been able to prove him guilty beyond a reasonable doubt and a reasonable jury would be obliged to declare him not guilty.”
The finding is a major triumph for Kelley’s supporters in a case that has spanned four years and pitted factions of Williamson County’s criminal justice system against each other over whether Kelley assaulted a 4-year-old boy. King had multiple options, but she chose the one Kelley and his attorneys prayed for the most.
“I think this judge’s findings are going to carry the day for Greg Kelley,” said Kelley’s lawyer, Keith Hampton.
Kelley was in Cabo San Lucas with his girlfriend when the decision was announced. He was released on bond from jail earlier this year by King, who indicated at the time that she would rule favorably in his case. The judge placed no conditions on his release, leaving him free to travel.
However, King’s decision is not the final chapter in Kelley’s saga, and he still faces a major hurdle. The Texas Court of Criminal Appeals will decide whether it agrees with King or whether the conviction will be upheld. The conservative court could order Kelley back to prison to finish his sentence. Kelley has served three years of a 25-year sentence.
The court has at times soundly rejected innocence claims, and its ruling could take many months or longer.
Kelley’s case has drawn public scrutiny, intense emotion and widespread fascination since it began with his arrest in the summer of 2013, just as he was entering his senior year at Leander High School.
Kelley was staying at the home of his friend Johnathan McCarty, whose mother operated an in-home child care. The 4-year-old reported that he had been assaulted and named Kelley as the perpetrator.
Kelley rejected a plea offer that would have kept him out of prison, went to trial the next year and was convicted of super aggravated sexual assault, the most serious charge he faced. He accepted a sentencing agreement in which he would serve a mandatory 25 years in prison rather than face a possible life sentence.
Over the years, his supporters have maintained his innocence and have worked to free him. This spring, newly elected District Attorney Shawn Dick announced that he had reopened the investigation and that a viable suspect — McCarty — had emerged.
McCarty was arrested on an unrelated drug probation violation. Law enforcement officials have said they are investigating him on allegations of sexual assault involving women, but he has not been charged. He remains in the Williamson County Jail.
Authorities have also discovered a third suspect, whose name has not been released.
During a hearing in August, prosecutors and Kelley’s defense said that Kelley’s questionable conviction was the result of a breakdown in the county’s criminal justice system, beginning with the investigation by the Cedar Park Police Department. They said the department did not do enough to investigate Kelley, neglecting basic steps such as identifying other adults in the home at the time the abuse was alleged to have occurred.
In her 44-page recommendation, King called the police investigation “deficient” for a number of reasons. Among them, the police detective did not go to the McCarty house to investigate, did not interview other adults in the household and did not interview the parents of the children at the day care or even obtain a list of the kids who attended it.
In a statement to the media, the city of Cedar Park pointed to other players in the process, noting that a grand jury indicted Kelley and a jury convicted him.
A private firm is conducting an independent review of the Cedar Park Police Department’s investigative operations, policies and procedures. That is expected to be completed by spring.
“The questions surrounding this case weigh heavily on all of us,” City Manager Brenda Eivens said. “Public safety is fundamental, and it requires the trust of our community to be most effective.”
Kelley’s lawyers have also blamed Kelley’s trial attorney, Patricia Cummings, saying she did not represent him properly and had a conflict of interest because she had previously represented members of the McCarty family in criminal matters. King agreed with them.
In her findings, King suggested that Cummings had a profound conflict of interest because she had represented members of the McCarty family a half-dozen times in criminal cases. One of those family members, King wrote, had been accused of a sex offense. That person, whose name is redacted in the filing, also had access to the child who was sexually abused at the day care, she said.
King wrote that Cummings’ conflict of interest is the only reason she could think of that Cummings — who “has a stellar reputation for defending her clients” — did not pursue other suspects. If she had pursued other suspects, King wrote, Cummings would have had to cast suspicion on one of her previous clients.
In recent days, Cummings’ supporters — including former client Michael Morton, who served 25 years in prison after he was wrongfully convicted in his wife’s murder — have said that she is being made into a scapegoat.
In a statement, her attorney, David Botsford, said, “Patricia presented strong, effective and professional representation to Kelley. There was convincing evidence that the children were not abused at all, which is the defense Patricia presented.
“We are confident that the Court of Criminal Appeals will summarily reject the claims by the District Attorney and Kelley’s current lawyer that Patricia had any sort of conflict or presented the wrong defense.”
The Court of Criminal Appeals is not friendly to innocence claims in general.
According to statistics from the Texas Office of Court Administration, defense attorneys have submitted an average of 4,263 such claims to the court each year between 2013 and 2016. 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 based on their merits.
Four-year legal struggle
August 2013: Greg Kelley accused of sexually assaulting two children at a local day care.
July 2014: Kelley’s criminal trial begins.
July 2014: Kelley found guilty, sentenced to 25 years in prison.
September 2014: Kelley denied new trial.
February 2016: After two years of legal wrangling, a state appeals court affirms Kelley’s conviction.
May 2017: Williamson County district attorney announces Kelley case has been reopened, that there is a new suspect and that the Texas Rangers are investigating.
August 2017: State District Judge Donna King holds a three-day hearing to determine whether there is enough evidence to recommend to the Texas Court of Criminal Appeals that Kelley be declared innocent or have a new trial.
August 2017: Kelley released on bond.
December 2017: King finds that Kelley’s conviction should be overturned and that he meets the state’s legal threshold to be declared innocent.