A lawyer appointed by the highest criminal court in Texas has lodged concerns over an effort to overturn the sexual assault conviction of a former Leander High School football star, telling the judges that allegations of poor policing and inadequate legal representation aren’t enough to exonerate Greg Kelley.
But the Court of Criminal Appeals might have legal grounds to conclude Kelley has proven that no reasonable juror would have convicted him if they had all the information that has come forward since his 2014 court case, State Prosecuting Attorney Stacey M. Soule wrote in a court document. Soule is a lawyer named by the appeals court to review cases that come before it.
Meanwhile, Kelley’s trial attorney is defending herself. Patricia Cummings, who represented Kelley in his trial, filed a document this week saying that the allegations against her of inadequate representation are frivolous. What’s more, she writes that Kelley’s current lawyer and the Williamson County district attorney have actively tried to keep her from telling her side of the story.
“Nevertheless, even with this interference, the record before the court shows that Cummings was not ineffective and had no conflict of interest in her representation of Kelley at trial,” her document states.
The case against Kelley, 22, began in 2013 when two children accused him of molesting them at the in-home day care facility where Kelley was living. A jury found him guilty of super aggravated sexual assault and he was sentenced to 25 years in prison.
Kelley has maintained his innocence, saying the children likely confused him with another person in the home, Johnathan McCarty. Kelley says that Cummings did not present that theory during his trial because she had a conflict of interest as she had previously represented the McCarty family in numerous criminal cases.
Kelley also claims that his constitutional right to due process was violated when Cedar Park police Detective Chris Dailey did not conduct a thorough investigation into the sexual assault claims.
Last month, state District Judge Donna King agreed with Kelley. King recommended that the appeals court overturn Kelley’s conviction, saying new evidence proved him legally innocent, the police investigation had been deficient and Cummings had not adequately represented Kelley.
There is no legal basis to free Kelley over the quality of the police investigation, Soule wrote, calling it an “absurd and erroneous proposition.” Police officers and prosecutors are not required to explore every possible alternative to a defendant’s guilt, the document states. Law enforcement officers are entitled to use their discretion, she wrote.
Soule’s argument jibes with that of the Combined Law Enforcement Associations of Texas, which has defended Dailey’s work. In a document filed with the appeals court last month, the group said Dailey did not violate Kelley’s rights.
“Dailey reasonably and in good faith conducted the investigation for the best interest and well-being of the victims without any outrageous disregard to (Kelley’s) due process rights,” the group’s filing said.
Soule argues against the appeals court accepting Kelley’s claim that Cummings’ work was deficient, saying she had not been given an adequate chance to defend herself.
This week, Cummings came forward to do just that. In a document filed with the appeals court, Cummings said she provided a strong defense. She had no conflict of interest, she said, and did not present McCarty as a viable alternate suspect because she did not think a jury would believe it.
Among the reasons: Kelley is 6 feet, 2 inches tall, and McCarty is 5 feet, 4 inches, and the children clearly knew the difference between the two men, she stated.
The appeals court has not indicated when it will decide on Kelley’s fate. But Kelley faces long odds of being exonerated, as the court usually rejects innocence claims.
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. Just 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.