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Gregory Kelley

Other Williamson County, Texas exonerations
On August 9, 2013, police in Cedar Park, Texas arrested 18-year-old Gregory Kelley, a standout high school football player in nearby Leander, Texas, on charges of sexually assaulting a four-year-old boy.

Police said the child, identified as H.M., was assaulted while at an in-home day care operated by Shama McCarty. McCarty’s son, Johnathan McCarty, was a classmate and friend of Kelley’s at Leander High School. He had offered Kelley a place to stay during his final year of high school after Kelley’s father was hospitalized with a stroke and his mother suffered a brain tumor.

H.M.’s mother told authorities that on July 13, her son said that “Greg” had put his penis in the boy’s mouth on two occasions. She told police that the only “Greg” she knew was Kelley, who had lived in the home until June 11, but then moved back home. Police speculated, based on the boy’s outcry, that the assault occurred on July 12.

Several days after Kelley was arrested, police said that another four-year-old boy, identified as L.M., said that Kelley had made him touch Kelley’s penis.

Kelley, who had verbally committed to play safety for the University of Texas at San Antonio football team, denied molesting the boys.

In July 2014, Kelley went to trial in Williamson County Criminal District Court on two counts of indecency with a child and two counts of super aggravated sexual assault. He had rejected a prosecution offer to plead guilty to an indecency charge, register as a sex offender for 20 years, and be on deferred adjudication—a form of probation—for 10 years. The prosecution got an indictment setting the date of the offense with H.M. as on or about April 15, 2013.

During opening statements to the jury, Kelley’s defense attorney, Patricia Cummings, said the accusations were false and that nothing had happened to the boys. She maintained that the lead detective, Christopher Dailey, had manipulated L.M.

The jury was shown a video of H.M. being questioned by a forensic interviewer at the Child Advocacy Center in Georgetown, Texas. The boy said his mother walked in while Kelley was assaulting him and a physical altercation occurred. The boy said Kelley punched him in the chest. This was fanciful, however. The prosecution and the defense agreed those things never happened.

Jennifer Deazvedo, a forensic interviewer at the Williamson County Child Advocacy Center, interviewed the boys. Deazvedo testified that it was not uncommon for children to tell fantastical stories when discussing such disturbing events. She said that L.M. never said he was molested during the interview. She said that after her interview with L.M., Detective Dailey then interviewed the boy and only then did LM. accuse Kelley of molestation.

H.M. testified via closed-circuit television and said that while he was sleeping on a couch, Kelley came in wearing Spongebob pajamas. H.M. said that Kelley pulled down the pajamas and put his penis in H.M.'s mouth twice. The boy said that Kelley put lotion on his own penis before inserting it into the boy’s mouth the second time. H.M. also said that Kelley tried to put his mouth on H.M.’s penis. When prosecutors attempted to walk the boy into the adjacent courtroom where Kelley and the jury were located, H.M. fell to his hands and knees and refused to budge--in view of the jury.

After the failed attempt to have H.M. identify Kelley in front of the jury, the defense and prosecution had a hearing outside the jury’s presence to address the impact of what had happened and whether the prosecution was required to have H.M. identify Kelley since he had testified via closed-circuit television. When considering how to rule on the issues presented, the trial judge, Billy Ray Stubblefield, mentioned that the identity of H.M.’s assailant was “in play” and that there were questions raised earlier about Jonathan McCarty being a possible suspect.

The trial judge apparently was referring to references that had been made about L.M.’s video recorded statement where L.M. mentioned Jonathan as being involved in the incident with Kelley, as well as a claim that when L.M. first mentioned the abuse to his parents, he referred to the “bosses” as Jonathan and Kelley. In response to the trial judge’s comments, Cummings said that her defense was that Kelley was not the perpetrator and she did not and could not say Jonathan was a possible suspect. “I’m saying I don’t have any idea,” Cummings said. “I don’t even know if it ever occurred…I’m just saying my client didn’t do it.”

Consistent with the defense theory that both boys were making false accusations against Kelley, L.M., who also testified via closed circuit television, said that there had been no sexual abuse. The prosecutor asked several times if he had been molested and the boy said “no” to every question.

Neither H.M. nor L.M. identified Kelley in court. They were never shown a photographic array during the investigative process.

In his testimony, Detective Dailey admitted asking leading questions during his interviews with the boys and that he had not followed best practices for interviewing the children. Such practices call for asking open-ended, non-leading questions. Dailey also admitted, during cross-examination by Cummings, that he had not gone to the McCarty home to look at the physical layout of the rooms. Nor had he interviewed Kelley or anyone else who was in the home. He said that he believed the children and that was enough to charge Kelley.

The evidence showed that H.M. had been subjected to at least eight “non-professional conversations” prior to his forensic interview at the child advocacy center. He also had four or five meetings at the prosecutor’s office, including one during which he was shown the video of his interview at the advocacy center. L.M. was questioned numerous times by his parents, several times at the advocacy center—including once by Detective Dailey—and met with the prosecution four times.

Child psychologist Dr. Stephen Thorne testified for the defense. “If non-professionals are seeking out child number one and child number two to talk about these allegations,” he said, “and they are doing it in an improper way, even if they are not intentionally doing it an improper way, it increased the likelihood of false allegations.” Thorne said that Deazvedo’s use of semi-structured interviews was no “better than flipping a coin while trying to determine if the allegations are true.”

Lee Carter, a child psychologist, testified for the prosecution that people who interview children about sexual abuse allegations need to establish rapport with the children and ask questions that are as open-ended as possible. He also said that “repeated questions about (an) event, whether it’s true or not, may cause the child to believe: ‘Well, she keeps asking me the same question. It must be because something happened.’ And so the answer has been telegraphed and they offer it.”

Kelley testified and denied sexually abusing the boys. He said that he was at school or working out virtually every day when the children were in the day care and that the children were always gone by the time he came to the home. Several witnesses testified that Kelley was well known as an honest person.

By the time the case went to the jury, the trial judge had dismissed one of the indecency charges involving L.M. due to lack of evidence. On July 16, 2014, after more than 12 hours of deliberation, the jury convicted Kelley of two counts of super aggravated sexual assault of H.M. and acquitted him of the remaining indecency with a child charge involving L.M. The charges carried a minimum sentence of 25 years without parole and a maximum of life in prison.

The following day, just before the jury was to reconvene for sentencing, Kelley agreed to two concurrent 25-year prison terms with no chance of parole. In return, he waived his right to appeal, but retained the right to file a motion for new trial and a state law petition for a writ of habeas corpus.

Attorney Keith Hampton filed a motion for new trial on behalf of Kelley and subsequently amended it three times. The final amended motion cited a juror’s statement that he was pressured into voting to convict Kelley, and it offered evidence that Kelley was barely at the McCarty home during the 192 days he lived there. That petition was denied in September 2014. Hampton appealed, but the Third District Court of Appeals upheld the decision in February 2016.

In March 2017, Hampton filed a state law petition for a writ of habeas corpus. According to the writ, new evidence discovered after trial showed that two witnesses heard Jonathan admit that he had sexually assaulted H.M. Following the filing of two amended petitions, a hearing was held in August 2017. At the conclusion of the hearing, Criminal District Court Judge Donna King recommended that the Texas Court of Criminal Appeals find that Cummings had provided an inadequate legal defense and that the Cedar Park police department had conducted such a shoddy and incomplete investigation that Kelley had been denied a fair trial.By agreement of the prosecution and defense, Kelley was released on bond on August 22, 2017.

In December 2017, Judge King issued additional findings of fact and recommended to the Texas Court of Criminal Appeals that Kelley’s conviction be overturned based on actual innocence. The prosecution and the defense also agreed to these findings.

The judge found credible testimony from witnesses that Johnathan McCarty looked very similar to Kelley, that he had admitted that he had molested H.M., and that they saw photographs of naked children on his cell phone. Unlike Kelley, Johnathan McCarty was living in the home in July 2013 when H.M.’s parents believed the boy was assaulted.

Other evidence presented at the hearing included:

--Mike Adams, an expert forensic digital examiner, found pictures of naked children on McCarty’s computer and on his cell phone, while no such photos were on Kelley’s phone. Adams characterized the photos as child pornography.

--McCarty posted a photo of a dancing seven-year-old girl on social media captioned: “My Dream Boat.”

--Four women accused McCarty of raping them after being drugged.

--Cody Mitchell, an investigator with the Texas Rangers, reviewed the Cedar Park police investigation and concluded that the police “failed to perform many basic steps necessary to conduct an effective investigation” and that the investigation was “not adequate.” Mitchell also concluded that the police and prosecution “backtracked” the date of H.M.’s assault from July 12, 2013 to April 15, 2013 because “Greg Kelley was their suspect…They were concentrating on time frames that he was there.”

--According to data on Kelley’s cell phone, on July 12, 2013—the day police alleged H.M. was molested—he was helping his brother move from Hutto, Texas to South Austin, Texas. In addition, while he had about 9,000 images on his phone, none was of naked children.

--H.M. said he was assaulted in a room with a couch, a crib, and a bed. H.M.’s mother said that the one time she came to get H.M. when he was still sleeping, he was in a room with wrestling trophies. McCarty’s room had a bed, a crib, a couch, and trophies. In contrast, Kelley’s room was so small that the bed took up most of the space.

--H.M. said the person who molested him wore SpongeBob pajamas. Witnesses said McCarty regularly wore SpongeBob pajamas, at times even to school.

In recommending that the writ be granted, Judge King ruled that Cummings had provided an inadequate legal defense because she had previously represented members of the McCarty family, including a half-brother who had been prosecuted as a juvenile for sex offenses.

Judge King also concluded that because H.M. failed to identify Kelley in any lineup, photo array, or at trial, the prosecution’s case was insufficient to sustain a conviction on appeal. Therefore, the judge found, Cummings’s advice that Kelley waive his appeal was “not based on sound trial strategy” because it was “likely that had (Kelley) been afforded the opportunity, the court of appeals would not have found the evidence sufficient.”

Cummings contended that her legal work for the McCarty family was years earlier and did not influence her decisions in Kelley’s case. In regard to the waiver of appeal issue, she also noted that Kelley had not waived his right to file a motion for new trial. Therefore, in the event that the evidence at trial was insufficient to sustain the convictions, Hampton could have raised the issue. Cummings maintained that she and the defense team had in fact investigated the possibility that Johnathan McCarty molested the boys.

On November 6, 2019, the Texas Court of Criminal Appeals granted the writ and vacated Kelley’s convictions. In a tersely-worded two-page decision, the Court of Criminal Appeals said, “Applicant (Kelley) alleges, among other things, that he is actually innocent of committing the offense in this case. The State agrees that he is entitled to relief.” The court rejected all the other lower court findings.

In a concurrence, Court of Criminal Appeals Judge David Newell, joined by Judge Bert Richardson, agreed that Kelley had proved his innocence, but wrote separately to clarify points of disagreement with the trial court. He wrote, “I agree that the system failed (Kelley): for it convicted an innocent man. But I do not agree that (Kelley’s) constitutional rights were violated by either the Cedar Park Police, or trial counsel.”

Judge Newell said that Judge King’s conclusion that Kelley’s convictions would have been set aside on appeal due to insufficient evidence was “a conclusion that lacks a basis in law.”

Newell further disagreed with the trial court that Cummings had a conflict of interest because of prior representation of members of the McCarty family. The half-brother, the evidence showed, was not even in the McCarty home during the relevant time period, the judge noted. Newell also found that Cummings did investigate Johnathan.

“Cummings interviewed Johnathan three times and ‘many other witnesses’ in an effort to gather information about Johnathan,” Newell said. He noted that Kelley told her before trial that he believed the children made up the accusations.

Newell also rejected the lower court’s findings that Kelley had received an inadequate legal defense. “Unlike the trial court,” Newell concluded, “I find that counsel’s advice in this regard was reasonably professional and motivated by sound strategy.” He added, “A court will not judge by hindsight the trial decisions of an attorney when those decisions follow accepted legal strategy and when, in the context of the time when they were made, they appeared to be in the best interest of the client. I end with the obvious: Patricia Cummings’ defense was successful as to one child."

“Although folks all seem to agree (or at least not actively disagree) with the bottom line that (Kelley) should have never been prosecuted, they disagree about what went wrong or how to make it right,” Newell said. “While the judicial system has an obligation to set things straight when an innocent person is convicted of a crime he did not commit, it need not lay blame on good faith actors in doing so.”

On November 27, 2019, the prosecution dismissed the charges. In 2020, Kelley filed a federal civil-rights lawsuit against the City of Cedar Park and several of its officers.

– Maurice Possley

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Posting Date: 12/18/2019
Last Updated: 5/6/2020
Most Serious Crime:Child Sex Abuse
Additional Convictions:
Reported Crime Date:2013
Sentence:25 years
Age at the date of reported crime:17
Contributing Factors:Mistaken Witness ID, Perjury or False Accusation, Official Misconduct
Did DNA evidence contribute to the exoneration?:No