Judge: Greg Kelley should be declared innocent in sex assault case

State District Judge Donna King is recommending that the conviction of Greg Kelley, a former high school football star sent to prison on child sexual assault charges, should be overturned and that he meets the state’s legal threshold to be declared innocent, Kelley’s lawyer said.

Under Texas law, a defendant meets the standard for “actual innocence” if a judge believes no reasonable juror would convict him.

The finding marks a major triumph for Greg Kelley’s supporters in a case that has spanned four years and pitted factions of Williamson County’s criminal justice system against one another over whether Kelley assaulted a 4-year-old boy. King had multiple options, but 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.

READ: What draws 500 people to support Greg Kelley in his sex assault case

However, King’s decision is not yet the final chapter in Kelley’s long-running saga, and he still faces a major hurdle. The Texas Court of Criminal Appeals will have the final say about whether it agrees with King or whether it will uphold his conviction. It is possible the conservative court could order Kelley returned to prison. Kelley has served three years of his 25-year sentence.

The court has been known to reject the vast majority of such innocence claims; the ruling could take many months or longer.

There are two other suspects in the sex assault case, but District Attorney Shawn Dick said evidence does not support taking any of them to trial.

"It's frustrating," he said. 

In her ruling, King wrote that she  “finds that the culmination of evidence supports the applicant's claim of actual innocence. He has met his burden and established he is actually innocent of this offense for which he was convicted."

King called the police investigation of the alleged assault "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; did not interview the parents of the kids at the daycare or even obtain a list of the children who attended it.

READ: Texas Ranger shreds Cedar Park police work in Kelley case

In her findings, King suggests that Kelley’s trial defense attorney, Patricia 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 daycare, the judge’s ruling states.

King wrote that she can think of no other reason that Cummings – who, she wrote, “has a stellar reputation for defending her clients” – did not pursue other potential suspects in the crime other than her conflict of interest with the McCarty family. If Cummings pursued that theory, King wrote, she would have had to suggest to the jury that one of her own previous clients could have been the perpetrator.

For more on this story, visit MyStatesman.com

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