PASSAGE OF THE DAY: "The worldwide panic may have been driven, at least in part, by fears that daycares weren’t safe. As more women entered the workforce in the eighties, millions of kids went to daycare for the first time, and these cases preyed on parents’ worst fears. And, crucially, poorly conducted interviews led to false claims. Researchers now know that you can get a child to say pretty much anything if you ask them leading questions. One of the most fascinating aspects of Outcry is its deep dive into suggestibility research, as explained by Kamala London, a forensic psychologist at the University of Toledo. In the docu-series, London references a landmark study in which children underwent a routine medical exam and initially told interviewers that nothing inappropriate had happened. But after repeated interviews with suggestive questions (“Can you show me where the doctor touched your vagina?”) not unlike those asked by social workers and attorneys during a real investigation, kids then changed their tune and insisted they’d been abused, often elaborating in great detail. London and her colleagues found a similar pattern in footage from the Keller case and others from the eighties. “The kids were denying it, quite often,” she says, “but would be interviewed repeatedly … and would gradually succumb to these really high-pressure tactics.” You don’t have to be an expert, though, to tell that the interviews investigators conducted with the two boys in the Kelley case were flawed. This grainy police footage is difficult to watch."
STORY: 'Outcry offers a nuanced look at a wrongful conviction in Central Texas," by reporter Rose Cahalan, published by Texas Monthly on July 7, 2020.
GIST: "Every Wednesday morning for nearly two years, Greg Kelley had a ritual. A few minutes before 9 a.m., he’d sit down at his kitchen table with a cup of coffee and his cellphone. Then the soft-spoken young man would pull up the website of the Texas Court of Criminal Appeals and hit refresh, waiting for the court to post its rulings for the week. Kelley would scroll down the page, scanning the list of legal decisions, until he’d made sure his name wasn’t there. “Nothing,” he says in a scene from the riveting new Showtime docu-series Outcry, shaking his head. “It means another week of doing the same thing.”
Kelley, who was convicted of child sexual assault in 2014 and exonerated in 2019, repeated this weekly routine during 22 months of legal limbo, following his release from prison but before his name was cleared. It’s exceedingly rare for the state’s highest criminal court to overturn a conviction. More often, the judges send defendants back behind bars or back into court. “This does not feel like freedom at all,” he says.
Over five hourlong episodes, Outcry, which premiered on July 5, tells the troubling, complicated story of Kelley’s wrongful conviction and eventual exoneration on charges of child sexual abuse. The series was directed by Austin filmmaker Pat Kondelis, who previously investigated a Baylor University basketball scandal with the documentary Disgraced. Outcry contains many dramatic moments: heated courtroom testimony, tearful press conferences, and uncomfortable footage of investigators’ interviews with the two victims, who were four years old at the time. But the quieter scenes were the ones that stayed with me, as when we see Kelley eat dinner with his mom, lift weights at the gym, and, yes, refresh a website on his phone in hope of finally learning his fate. During these scenes, Kelley—a former Leander High School football star who was just nineteen when he was sentenced to 25 years without parole—looks like a wide-eyed kid, still struggling to understand everything that’s happened to him.
The basic facts of the case are these. In 2013, Kelley’s father was recovering from a stroke and his mother was undergoing treatment for a brain tumor. The standout athlete for Leander High, a mostly middle-class school in a comfortable suburb north of Austin, needed a place to live while his parents healed, so he moved into the home of his best friend and football teammate, Johnathan McCarty. McCarty’s mother ran a daycare at the house. One of the children she cared for, a four-year-old boy, told his mother that Kelley had forced him to perform oral sex; on August 12, 2013, Kelley was arrested. Soon after, another young boy made a similar claim (or “outcry,” in police jargon). Kelley was then charged with super-aggravated sexual assault, an elevated charge that removes the possibility for parole, and was sentenced to a quarter century behind bars.
The case had numerous problems from the start, each of which Outcry slowly and methodically unpacks using a combination of police recordings, courtroom footage, and interviews with key players. First, and most glaringly, there was no physical evidence; Kelley was sent away based almost entirely on the word of two four-year-olds. “Believe the children” is a refrain throughout the show—it’s a line repeated by everyone from the police officer who did the initial investigation, to his unrepentant chief, to an abuse survivor and community member who tells the filmmakers she’s still convinced of Kelley’s guilt.
As well-meaning as it is, “believe the children” is a phrase that also elides an ugly history. During the eighties—as part of the Satanic panic that stoked mostly unfounded fears of occultism and ritual violence across the United States—numerous outlandish, false allegations of abuse at child care centers sent innocent people to prison. One of the most notorious cases took place in Austin, where Fran and Dan Keller were accused of forcing toddlers to have sex, serving them blood mixed into Kool-Aid, and making them watch the dismemberment of animals. The Kellers spent 21 years in prison before their exoneration in 2013; similar scandals occurred in California, New Jersey, Massachusetts, the United Kingdom, Canada, and New Zealand.
What was going on? The worldwide panic may have been driven, at least in part, by fears that daycares weren’t safe. As more women entered the workforce in the eighties, millions of kids went to daycare for the first time, and these cases preyed on parents’ worst fears. And, crucially, poorly conducted interviews led to false claims. Researchers now know that you can get a child to say pretty much anything if you ask them leading questions.
One of the most fascinating aspects of Outcry is its deep dive into suggestibility research, as explained by Kamala London, a forensic psychologist at the University of Toledo. In the docu-series, London references a landmark study in which children underwent a routine medical exam and initially told interviewers that nothing inappropriate had happened. But after repeated interviews with suggestive questions (“Can you show me where the doctor touched your vagina?”) not unlike those asked by social workers and attorneys during a real investigation, kids then changed their tune and insisted they’d been abused, often elaborating in great detail. London and her colleagues found a similar pattern in footage from the Keller case and others from the eighties. “The kids were denying it, quite often,” she says, “but would be interviewed repeatedly … and would gradually succumb to these really high-pressure tactics.”
You don’t have to be an expert, though, to tell that the interviews investigators conducted with the two boys in the Kelley case were flawed. This grainy police footage is difficult to watch. The first child, when asked “What does it mean to tell the truth?,” says “I’m supposed to tell the truth, but I can’t tell it.” He squirms and fidgets nonstop, clearly eager for the interview to end; he also describes a fight between Kelley and the child’s mother, which all the adults later said didn’t
happen.
The second child’s interviews are even more troubling. London, who reviewed the footage, explains that this boy, in his first two interviews, said he was never abused. It was only in his third interview—led, against all recommendations, not by a trained social worker but by Cedar Park police sergeant Chris Dailey, with his gun visibly holstered on his hip—that the child caves, agreeing that Kelley had abused him. At the trial, testifying via closed-circuit TV, the boy again said he had never been abused. London calls Dailey’s interview of the second child “as bad as any I’ve seen over the last twenty years,” adding, “They just don’t come any worse than that.”
Dailey is portrayed in Outcry as a bumbling villain who bungled the investigation. When he first received a call from a parent saying her child had reported abuse, Dailey didn’t go to the McCarty daycare to investigate. He didn’t interview the daycare employees, nor did he speak with the other young man living there, Johnathan McCarty. The child said the abuse happened in “the trophy room” or the “couch room”—a description fitting Johnathan’s room, not Greg’s. Side-by-side photos also show that McCarty and Kelley looked almost like twins, suggesting anyone could’ve easily mistaken one for the other. The child was never asked to identify his abuser from a photo lineup, though he did mention that the man had worn SpongeBob SquarePants pajamas—which multiple friends and classmates attest McCarty often wore. Years later, investigators would find child pornography on McCarty’s phone; he would also be arrested, according to Kelley’s attorney, at least sixteen times for other incidents, and was eventually convicted of rape. But Dailey didn’t speak to McCarty or look into him at all. At trial, when the defense asked Dailey the purpose of a criminal case, he promptly answered “successful prosecution,” not “to find the truth,” to audible gasps in the courtroom. (Dailey and McCarty declined to participate in Outcry.)
But, of course, a wrongful conviction is never the fault of a single individual. It’s a systemic failure, a breakdown at multiple levels. Outcry suggests that Kelley was the victim of not only a bad cop but also an overzealous district attorney’s office. Williamson County, where he was prosecuted, has a history of unusually harsh law enforcement, and the film questions whether the U.S. legal system is fundamentally flawed. One juror, in an anonymous interview, breaks down in tears while recounting how he regrets changing his vote from innocent to guilty late at night, exhausted and under pressure from other jurors who just wanted to go home to their families, instead of being sequestered in a hotel.
In addition, Outcry argues that Kelley’s first attorney, Patricia Cummings, failed to represent him adequately. This part of the film drew strongly worded criticism over the weekend from Michael Morton, who was also wrongfully convicted in Williamson County and was freed in 2011 thanks to Cummings. In a statement, Morton wrote that he wasn’t given a chance to participate in the film, and that its rosy portrayal of the district attorneys who helped overturn Kelley’s conviction fails to mention how those same attorneys fought to keep Morton behind bars. “I only wish that Showtime had acted responsibly in telling our stories—rather than denigrating one of the fine lawyers who got me out of prison,” he wrote. The filmmakers then responded with their own statement, writing that “The film is not, and does not purport or even attempt to be, an exhaustive account of the Morton case,” and noting, “Mr. Morton never responded to repeated calls and voice mails.”
Cummings, who now leads Philadelphia’s Conviction Integrity Unit, previously fought to overturn wrongful convictions in Dallas, at an office that has cleared the names of at least 25 innocent people, but Outcry fails to mention these stellar credentials. Meanwhile, the docu-series glorifies Keith Hampton, Kelley’s second attorney, an avuncular man with a shock of gray hair and a fondness for suspenders. He gets a lot of screen time, accusing Cummings of having a conflict of interest (she had previously represented one of McCarty’s brothers) and of overlooking key errors made by the prosecution. Hampton is a legendary lawyer who deserves praise for working to free Kelley and other wrongfully convicted Texans, including Dan and Fran Keller and the San Antonio Four, and his folksy style makes for great TV—one powerful moment comes near the end, when Hampton holds a press conference to announce his client’s exoneration, and he becomes too emotional to speak. But why such a heavy focus on attacking Cummings?
The show has another blind spot: it lacks awareness around privilege, race, and class. As I watched, I found myself thinking about the unspoken reality that Kelley is the kind of person—middle-class, light-skinned (he is half-Hispanic), male, handsome, popular at school, and a star athlete—for whom the justice system is most likely to work. After his conviction, a savvy group of supporters held rallies on his behalf and started a #FightForGK social media campaign. An Austin businessman named Jake Brydon, who had no connection to Kelley but was struck by his plight (“That could have been me,” he tells the filmmakers), organized the effort and helped pay legal bills. The case also attracted the media, with a steady drumbeat of stories from the Austin American-Statesman, KVUE, KXAN, and other outlets. Would any of this have happened—would Kelley have ultimately walked free and gone on to become the subject of a five-hour show on national TV—if his background were different? Outcry never addresses that question.
On the whole, though, Outcry is a captivating and introspective series that avoids the worst pitfalls of the true-crime genre, favoring character and nuance over gory detail and sensationalism. In the last episode, the show tackles the question of voyeurism head-on. Kelley, now 25, is rebuilding his life—he’s just married the woman, Gaebri Anderson, who stood by him throughout his ordeal, and he’s studying kinesiology at the University of Texas, where he hopes to walk on to the football team. In the show’s final moments, he talks about watching the movie The Truman Show, in which Jim Carrey’s character finds out his life has been a sham, orchestrated for reality TV. “I was like, man, that’s a little bit what I’ve been going through,” Kelley says. “Starting when I was nineteen years old, I’ve had a camera in my face. … I’ve never been fully free.” At the end of the movie, Truman smiles and walks off the set. “I want that so much,” Kelley says, choking up. Outcry ends with one last shot: an empty chair.""
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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