Was Greg Kelley, a 19-year-old former Leander High School football player, wrongly convicted of sexually assaulting a 4-year-old boy at an in-home day care center in Cedar Park?
State District Judge Donna King will rule on that question later this month, but a string of witnesses at a three-day hearing in Williamson County last week assailed the handling of Kelley's 2014 conviction by prosecutors, police and even the defense attorney.
Kelley was convicted in 2014 and sentenced to 25 years in prison. Now 22, Kelley has been serving his sentence at Huntsville prison for three years. Current Williamson County District Attorney, Shawn Dick, reopened the investigation into the Kelley case in May after expressing concerns about the way the case had been handled.
"My commitment is to restore the public's faith and trust in our criminal justice system,” Dick said in his statement at the hearing Friday. “I can't do that by defending a prosecution like Mr. Kelley's."
Law enforcement and the prosecutors originally involved in the case have maintained that justice was served. The Cedar Park Police Department, which was the target of extensive criticism during the hearing, has declined to comment.
"Since this is an open and ongoing criminal justice process, we will not be making any statements until the matter is fully resolved," said Tara Long, the spokeswoman for the police department.
Dick told reporters he would not have brought charges against Kelley had he been District Attorney at the time. Dick said Williamson County prosecutors at that time, the Cedar Park Police Department and Kelley's original defense attorney, Patricia Cummings, all exhibited "tunnel vision in pushing this case to trial."
Dick criticized his predecessors in the Williamson County District Attorney's Office for going forward with Kelley's prosecution despite a lack of evidence, saying the CPPD investigation was "wholly deficient." Dick also alleged that with the evidence that was available to her, Kelley's defense attorney should have been able to better defend her client.
"We can and we must do better," Dick said. Kelley, now 22, attended the hearing as did a large number of his family and friends who have remained steadfastly supportive of his claim of innocence.
King, who also appeared to have been moved by the three days of testimony in the case, ruled that no bond would be set for Kelley immediately, saying instead she needed time to review the evidence before making her decision. King requested that all evidence be submitted to the court by Aug. 18. From there, King will make her recommendation to the Texas Court of Criminal Appeals, who will determine whether Kelley should be exonerated or possibly be granted a new trial.
Texas Ranger Cody Mitchell testified during the hearing that while prosecutors and police zeroed in on Kelley, there were at least two other suspects in the case, including Jonathan McCarty, who lived with Kelley in the house where the abuse is alleged to have taken place. The Ranger would not identify the third suspect because the investigation is ongoing.
Mitchell testified that, in his opinion, the Cedar Park Police Department made more than a dozen lapses in procedure in investigating the case, saying he believed Kelley was treated unfairly during the investigation.
Noting if he had been accused of something then, Mitchell said, "I would have been scared to death that I could be in the same position."
Among other examples, Mitchell said Chris Dailey, the Cedar Park detective investigating the case, did not look at Kelley or McCarty’s phones or computers. Mitchell told the court he found images he considered pornographic on McCarty's computer, which included pictures of naked children, some of which McCarty had attempted to delete. A forensics expert said there were no such images on Kelley's phone or computer.
Several witnesses said they had considered McCarty a suspect from the beginning and others told the court that they believed Patricia Cummings, Kelley's attorney at time of his trial and conviction, mishandled Kelley's defense.
A private investigator who worked for Cummings when she was defending Kelley said he also was concerned and thought Cummings had a conflict. The investigator said he showed Cummings side-by-side photos of Kelley and McCarty, who look very similar, and the defense lawyer told him, "We aren't investigating that."
Dailey, the Cedar Park detective who investigated the case prior to Kelley's trial, testified on the first day of the hearing that he did not investigate the possibility that anyone other than Kelley could have committed the child abuse crime.
When asked if he had conducted a thorough investigation into the Kelley case by Williamson County prosecutor Rene Gonzalez, Dailey said “Yes, sir.”
Dailey has been criticized for deleting emails about the case he exchanged with a Child Protective Services investigator. “I didn't think they contained any evidentiary value," Dailey told the court.
Tracey Anderson, the mother of Kelley's girlfriend, said Cummings refused to investigate McCarty as a possible suspect in the case. She also told the court that Cummings had previously represented McCarty's family.
"It was a major concern," Anderson testified. "That was a red flag to me."