PASSAGE ONE OF THE DAY: " 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.”
---------------------------------------------------------
PASSAGE TWO OF THE DAY: "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."
-------------------------------------------------------------
ENTRY: (By writer Maurice Possley; Published on December 18, 2019): "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
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, pulled
down his Sponge Bob pajamas and put his penis in his 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."
The entire entry can be read at:
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5645
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;
