A man named as an alternative suspect in the sexual assault of a 4-year-old boy — a case that led to Greg Kelley’s conviction — probably will never be charged with the crime, Williamson County District Attorney Shawn Dick told the American-Statesman and KVUE-TV on Wednesday.
“Absent of any extraordinary evidence or a confession, I do not anticipate ever charging Johnathan McCarty with this crime,” Dick said. “Sometimes you have clues, leads, motives, but the bottom line is that when you are going to take someone to trial, I don’t believe we are going to be able to based on the evidence we have now.”
Dick’s disclosure is the latest turning point since he announced in May that he was reopening the investigation involving Kelley, who was found guilty of assaulting the 4-year-old in 2014. Kelley was released on bond in August as he seeks to have his conviction and 25-year prison sentence overturned. Dick’s assessment of the evidence against McCarty is not expected to affect Kelley’s appeal.
Dick said he informed McCarty’s lawyers about his opinion of the case against their client this week. Attorney Kellie Bailey, who represents McCarty, could not be reached for comment.
McCarty, 20, remains under investigation for unrelated crimes, including accusations that he sexually assaulted four women, and is still in the Williamson County Jail on a probation violation for previous drug charges, Dick said.
He added that a Texas Ranger investigation into the sexual assault of the boy in Kelley’s case remains open and that Rangers have told him they do not plan to close it until they can narrow the case to only one suspect — or until they have no other possible leads to pursue.
The Ranger leading that investigation, Cody Mitchell, testified at a hearing in August that Cedar Park police mishandled the investigation so badly that it violated Kelley’s constitutional rights.
Mitchell also testified that he has identified three suspects, including Kelley and McCarty, but he did not name the third.
McCarty’s mother operated the child care facility where the boy said he was assaulted in 2013, and Kelley was living in the home because his parents were ill at the time.
McCarty was publicly linked to the assault on the boy in late May after Kelley’s defense team named him in court documents as an alternative suspect and presented evidence that they said implicated him. That evidence included side-by-side photographs of the two wearing football uniforms, and attorney Keith Hampton has suggested that the child might have confused the identity of his assailant.
According to court documents filed by Kelley’s attorney, McCarty confessed that he, not Kelley, assaulted the boy to at least two people and had photographs of nude children on his phone.
After prosecutors confirmed that they were investigating McCarty’s possible link to Kelley’s case, four women came forward, saying that McCarty sexually assaulted them. No other information about those cases was available Wednesday.
Kelley’s appeal is pending. A judge is expected in the next several weeks to issue recommendations to the state’s highest criminal court about whether it should overturn or uphold his conviction and whether he could be declared innocent.
In a highly unusual move, the judge released him on bond in August after finding that his right to due process was violated during his 2014 trial because of the missteps in the investigation outlined by Mitchell.
Keith Hampton, who represents Kelley, said he is not surprised that McCarty probably will not be prosecuted and blamed an incomplete investigation by Cedar Park police.
The department has been sharply criticized for its handling of the case.
“It’s the Police Department’s problem,” he said. “Their lack of investigation of Johnathan McCarty. They had to do something, and they did nothing.”