Kelley, a former Leander High School football player who was convicted and sent to prison in 2014 on charges of super aggravated sexual assault of a child, should be declared innocent, according to a state judge in Williamson County.
Williamson County District Judge Donna King said Kelley meets standards for “actual innocence” under Texas law, which can be declared if a judge believes no reasonable juror would convict him.
Kelley served more than three years in jail after being convicted of sexually assaulting a 4-year-old boy at a day care operated in the home where Kelley was residing at the time of the alleged events. He has proclaimed innocence all along, rejecting plea offers to prevent trial but later agreeing to a sentencing plea at the suggestion of his family, to avoid a possible life sentence once the jury found him guilty in July 2014.
Kelley’s sentencing plea agreement included a condition that he waived his right to appeal. However, a new attorney — Keith Hampton — took up Kelley’s case and has continued seeking either a new trial or outright exoneration beginning the month after Kelley was convicted.
After hearing Judge King’s ruling, Hampton said he’s optimistic the judge’s decision will “carry the day” for Kelley.
In her ruling, King said, had there been the evidence presented that didn’t make it into the trial, “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.”
Kelley’s fate will now be in the hands of the Texas Court of Criminal Appeals, which will either agree with King's ruling or uphold his conviction and order Kelley be returned to prison to finish serving his remaining sentence.
The decision could take several months, and historically the court has a history of upholding convictions in innocence claims.
Only two claims have been granted since 2013, according to statistics from the Texas Office of Court Administration. In one case, Sonia Cacy’s legal battle waged for more than two decades and included her serving six years of a 99-year sentence before being exonerated.
Cacy’s exoneration hinged on allegations that her attorney at trial failed to provide adequate representation and that evidence that could have proven her innocence was never presented to the jury. Both of those points are integral to Kelley’s effort to be exonerated.
New Williamson County District Attorney Shawn Dick requested a hearing into Kelley’s conviction — something he had campaigned on before winning the office last November. At a hearing this summer, testimonies raised questions about the effectiveness of Kelley’s criminal defense attorney during the trail that convicted him three years ago.
King criticized the investigation that led to Kelley's arrest, specifically the actions of Cedar Park Detective Chris Dailey. The judge said Dailey did not speak to Johnathan McCarty, who was identified as another other possible suspect in the case, nor did Dailey conduct a follow-up investigation into McCarty’s involvement.
McCarty’s attorney, Kellie Bailey, has said that her client is innocent.
Cedar Park Police Chief Sean Mannix has repeated his belief that his department’s work was adequate and that the court rightfully convicted Kelley, despite the appearance in court this August from a Texas Ranger who testified the department’s handling of the case was botched.
The City of Cedar Park approved the hiring of an outside firm to review the department’s practices in October.