Flawed Evidence – Greg Kelley Case Notes

There was only ONE piece of evidence

…the 4-year-old boy, who was the only witness to this crime

The case was built on a false assumption.
The incident date was originally given as 7/12/13.
The “Evidence” did not substantiate that Greg was the assailant.
The boy never verified the person accused of the assault.
The “Evidence” itself was flawed.
The boy’s information was highly unreliable.
The “Evidence” was further contaminated.
The boy was interviewed more than 11 times before being interviewed by the CPS. The 4-year-old was manipulated to say what the prosecution wanted to hear. Prosecutors had 1 year to specifically prepare the boy to say what they wanted the jury to hear

#1. This case was built on a false assumption

Dec. 3, 2012	Greg moved into the McCarty home/daycare
June 11, 2013	Greg moved out of the McCarty home/daycare
July 13, 2013	A 4-year-old boy mentioned that he was molested at Shama’s daycare center
July 15, 2013	Parents spoke with daycare owner, Shama McCarty for 2 hrs
July 18, 2013	Parents called police. Officer Kevin Freed reports the incident occurred between 7/8/13 and 7/12/13—most likely it occurred on July 12. (If these dates are accurate, Greg was NOT living in the daycare at that time. Greg’s whereabouts were verified at the August 2017 hearing, and, he was not at the daycare)
	Detective Chris Dailey was assigned to this case. The detective spoke with Shama McCarty on the phone.
July 24, 2013	He notified Chief Mannix , “I’ve identified the assailant as Greg Kelley”. Detective *CHANGES* possible incident dates to 12/3/12 through 6/11/13 …a period of 192 days.
August 2, 2017 (during hearing with District Judge King)	Detective Dailey was asked, “What were the date ranges of when this incident occurred?” Dailey said. “It occurred between December 2012 and June 2013.” He was pressed about this, BUT COULD NOT PROVIDE AN ANSWER ON HOW HE CAME UP WITH THIS DATE RANGE. Detective Dailey did not discuss the reported date of the offense with Officer Freed.Dailey said he did no investigation as to when the date of the offense might have occurred. Dailey was asked, “If Officer Freed was correct on the date when this would have occurred, would that cause a problem for your investigation?” Daily said, “Yes, I’d have to find evidence to place Kelley at the home.” Dailey was asked, “Was your investigation *based on* *your own personal belief that Greg Kelley was* *guilty?” Dailey said,“Yes”. Prosecuting Attorney Renee Gonzalez asked, “Sargent Dailey, what is the ultimate goal of a police* investigation?” Dailey responded, “*A successful prosecution.*”

Why did the Detective change these datesand why did he accuse Greg Kelley?

On July 15, 2013 The little boy’s parents spoke with daycare owner, Shama McCarty for 2 hours
Before learning of the molestation, parents had no reason to know Greg Kelley’s name.
It has been established that Greg was rarely in the home. The parents would not have been present when Greg was present.
Shama could have suggested Greg’s name to the parents, if she did not want anyone to think that her son, Jonathan, might have molested their child.
Before arresting Greg, it was recorded that the detective spoke with only two people, the boy’s parents and Shama
On July 24, 2013 the detective notified Chief Mannix “the offender is Greg Kelley”
The detective changed the date of the assault. He states that it occurred between 12/3/12 and 6/11/13 (a period of 192 days)
Greg moved into the daycare on 12/3/12. He moved out of the daycare on 6/11/13.
The detective dismisses the idea that the incident may have occurred between7/8/13-7/12/13
The detective seemed to be quite certain that Greg Kelley was the guilty person after visiting with Shama McCarty on the phone. He stated in court that he had a “gut feeling” that Greg Kelley was the perpetrator.

I often wondered why defense lawyer, Patricia Cummings allowed the detective to use Dec.- June as the acceptable assault dates, and deny the July 12 date which made a lot more sense? Was it because the only acceptable suspect would have been Jonathan McCarty?”

Was Shama McCarty being untruthful when she spoke with the detective on the phone?

Greg Kelley’s parents were both in a rehab facility outside the Leander School District. His mother was recovering from a 3rd brain operation and his father had suffered from a severe stroke. They did not have a lot of money. Greg had recently accepted a much needed, full-ride football scholarship to the University of Texas in San Antonio.
He wanted to play football his senior year at LHS, and Shama agreed to let him stay in their home.
When Greg was arrested, he had no resources or understanding of legal matters. He was an 18-year-old high school junior. Shama was older and had experience in such things. She recommended Patricia Cummings to represent Greg, because Cummings had previously represented 2 of her 4 sons.
Shama is the mother of 4 boys. 3 of her sons had been in trouble with the law before Greg was arrested for this assault.
1. Dinusha was not represented by Patricia Cummings, but was deported to Sri Lanka for a crime he committed in the US.
2. Nimesh Dissanayaka had been arrested for sexual assault of a minor girl. He received a lengthy sentence which was reduced by Patricia Cummings before Greg’s trial. He had served 8 years. Greg mentioned that Nimesh was often seen at the McCarty home, contrary to information given in Patricia’s Cumming’s Amicus Brief. Angel Perez, a teenage high school student who also stayed at Shama’s daycare, verified that Nimesh was frequently at the daycare.He gave his testimony of this and other matters at the August 2017 hearing.
3. Minusha was also represented by Cummings. I don’t know what his crime was.
Shama’s youngest son, Jonathan, was a known drug dealer who had parties in their home. He had been accused of date rape of 2 girls, but no charges had been filed. There were many stories that students who attended these parties wanted to tell, but the detective did not talk to any of the people who stayed at the daycare.
Patricia Cummings was adamant about not wanting to introduce Jonathan’s name to the court. There was much evidence presented at the August 2017 hearing from 4 witnesses, including her own investigator, that she should investigate Jonathan McCarty, however, she did not want Jonathan’s name to be mentioned.

What does this have to do with the evidence?

The wide range of 192 days, is far removed from the 7/8-7/12 dates given by the incident officer. It changes “the way the boy is expected to respond” to the detective’s investigation
12/3/12 and 6/11/13 are the dates Greg moved into the McCarty home and moved out
I wonder why the parents would allow this date to be decided.
This might partly explain why they gave such wildly different testimonies during the trial
This information raises many more unanswered questions about the conduct of the case and the information used to convict Greg of this assault. (see SECTION A #3)

Why would Jonathan have been a good suspect in this case?

Jonathan’s name was mentioned twice by one of the boys in a taped interview.
Both Dailey and Cummings saw/heard this interview. Neither wanted to investigate whether or not Jonathan should be considered a suspect
Additional reasons why Jonathan would be a good suspect are mentioned later in this book. The victim stated in court that his assailant wore SpongeBobSquarePants pajamas. It was well-known that Jonathan wore SpongeBobSquarePants around the house and even in school. Everyone knew Jonathan wore these. Greg didn’t.
The child said his assailant’s peepee was dark in color. Greg’s weren’t. McCarty’s were. Greg’s genitals were photographed in prison. This was never brought up in court.
The child said his assailant made him use lotion. A witness stated that McCarty used lotion more than anyone they had ever seen.
The child said there was a crib in the room where he was abused. There was a crib in Jonathan’s room, but not in Greg’s room.
The attendance secretary said, Jonathan frequently cut classes between 1:30 and 3 pm. This is the time when the children took their naps.
Tracey Anderson knew Jonathan very well. Her daughter, Gaebri, was Greg’s girlfriend. Jonathan had a crush on her and wanted her for himself. He tried to impress her by telling her things that only he and his mother, Shama McCarty, knew. When Tracey tried to tell her these things and suggest Jonathan as a suspect, PC put out her hand and said, “Stop right there, We’re not going in that direction!”
Anderson, Bridges, and the private investigator that Cummings hired…all were shut down immediately and were dismissed for their suggestion. She was not in any way, interested in considering Jonathan.
AJ Kern, a highly respected private investigator that Cummings hired, stated that Cummings “was blinded by her conflict of interest”
On the first day of the trial, Judge Stubblefield asked Cummings if Jonathan was a suspect. She responded like this: “Can I stop you? I’m not taking the position that Jonathan committed this crime…”

After Greg’s incarceration, we learned much more about the 2nd possible suspect, the one who was not investigated by detective Chris Dailey, and protected from discovery by the defense lawyer, Patricia Cummings.

He dropped out of school
He had a felony cocaine conviction in May 2015 when officers seized 8.95 grams of cocaine from a car he was driving. He was sentenced in December 2016 to 4 years probation and 100n days in prison. The probation was revoked on May 25, 2017.
While at a party McCarty confessed to the assault 3 months after Kelley’s trial ended
Investigators found photos of children, one of which included a naked child between the ages of 4 and 6 years old on McCarty’s phone.
McCarty’s home computer was also searched and officials sails they found more pictures of naked children and that he frequently visits child pornography sites.
Today, Jonathan McCarty remains under investigation for unrelated crimes, including accusations that he sexually assaulted four women.
He is currently in jail on probation violations for previous drug charges
Jonathan pleaded guilty to unlawful restraint and drug charges. He was sentenced to four years in prison while Greg was serving 25 years for molesting the little boy.

#2. The “Evidence” did not verify that Greg was the assailant

The boy was never asked to verify that the person named as his assailant was actually the person he was talking about.

“Affirmative identification was more than insufficient in this case; it was wholly absent. Applicant would therefore have been entitled to an acquittal on appeal.” (Statement from Judge Donna King after the August 2017 hearing.)

Detective Dailey did not attempt to gather corroborating information that the assailant identified as “Greg” was the Applicant, Greg Kelley
Dailey said that the name “Greg” came from the victim’s father and there was no other identification of Greg Kelley during the investigation
There was no in-court identification of Greg Kelley as being the person who committed the offense against the little boy

The little boy never saw the “Greg“ he was accusing, because he was never in Greg Kelley’s presence after he said it.

The boy gave his testimony in court in an enclosed room with a video camera, so the audience could see him, but he couldn’t seem them.

The prosecutors had said at the beginning of the trial that the little boy “had a meltdown” and shouldn’t be allowed to see or be seen by the people in the court.

Here’s what was asked in the August 2, 2017 hearing:

Prosecuting Attorney, Renee Gonzalez:
“Sargent Dailey, how did the name Greg Kelley come into this?

Detective Dailey:
“The victim’s father named him.”

Gonzalez:
“The father? Not the victim?”

Dailey:
“No, just the father.”

With respect to the 2nd accuser (who later recanted during the trial), it was also the alleged victim’s father who named Greg …not the victim. (It was the detective who told the father that Greg was the suspect, before the child made an outcry.)

It seems ANYONE could have been named and convicted

“Who else could have done this?”

There were no alternatives.

The only suspect available was Greg Kelley.

In Germany, the Nazis came for the Communists, and I didn’t speak up because I wasn’t a Communist.
Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew.
Then they came for the trade unionists, and I didn’t speak up because I was a Protestant.
Then they came for me, and by that time there was no one left to speak.
Pastor Martin Niemoller

I hope someone will speak up for Greg Kelley

#3. The Original “Evidence” Was Flawed

It was well-known that the boy’s information was highly unreliable.

The following descriptions of the child were given by other parents, counselors, daycare workers and the defense lawyer :

He had trouble remembering names
He could not accurately tell his own last name
He did not know the names of any of the 10 teenage boys who lived in the home
He did not know his birthday date
He was seen being spoon fed by daycare workers
He was quiet and kept to himself
He said inappropriate things to other children
He was seen playfully “humping” other children
He didn’t know if he was assaulted last week, last month, or last year
He didn’t know if he was molested upstairs or downstairs
He didn’t know if he was molested in the bedroom, living room, or bathroom
He didn’t know if he was molested on the floor, on the couch, or on the toilet

The child and his parents gave different stories during the trial

The Mother said that her son was using the bathroom when Kelley forced him to perform a sex act at the daycare. The mother mentioned a second allegation, but the judge dismissed that charge b because the boy never mentioned it during his interview with the counselor or while testifying in court.
The Step-Father said his son was sleeping in the upstairs living room. Kelley was wearing pajamas, and everyone was asleep. He also said his son sometimes lies and makes up stories.
The Child himself said Greg got into a fight with his motherwhen she walked into the room.
“In one video shown to the jury, the boy is questioned by a forensic interviewer at the Child Advocacy Center of Georgetown, which specializes in interviewing children who have been victims of crimes. The child said when his mother walked in the room Kelley was assaulting him and a physical altercation ensued. The child describes how his mother was angry and that Kelley punched the boy in the chest, showing the interviewer the spot.“

#4. The Evidence Was Further Contaminated

“After using improper interviewing methods, a determination of what actually happened to the child is virtually impossible. Primary evidence has been destroyed.”

Child experts and local agencies in sexual assault cases say that a child should be interviewedONLY ONCE using non-leading questions by trained interviewers…

“False accusations can be prompted, aggravated or perpetuated by law enforcement, child protection, or prosecution officials who become convinced of the guilt of the accused.”

Austin Police stated that officers are NOT allowed to interview children under age 6. This must be done by a trained counselor. “A second interview may be conducted on the child, but these rarely happen and only if there is a critical piece of evidence that was uncovered during the investigation that must be cleared up by the victim.”

Children with low self-esteem may embellish the truth, brag or exaggerate in a bid to impress others or in an attempt to fit in with peers. Similarly, children who are feeling insecure may invent scenarios to try to get adults’ attention and interest.”

“The concern is contamination of the child’s memory of the incident(s)…Research and clinical experience indicate that the more times a child—especially a young g child—is interviewed about alleged abuse, the less reliable that child’s testimony may become.”

Because of the way the little boy was treated by the detective and the child advocacy counselors, it is doubtful that the little boy’s testimony was accurate. Since the detective and the child investigators both destroyed their emails, it is impossible to confirm what was learned.

The 4-year-old witness was interviewed more than 11 times.

**The 4-year-old’s were reminded to say what the detective wanted to hear**

In listening to the recording of the detective’s interview with the boys, he uses Greg’s name over and over to make sure they know who Greg Kelley really is.
Detective admitted during the trial, that he used direct questioning to get the answers he wanted. In the interviews, he wore his gun and failed to establish any rapport with the child. He admitted in court he knew it was wrong.

**Prosecutors had 1 year to prepare H.M. to say what they wanted the jury to hear**

In July 2013 HM (the first victim) began learning how to respond to questions about his assault.
He was questioned by his parents, CPS counselors, CAC counselors, the detective, and many others over a period of the year, before going to trial.
Prosecutors met with HM at least 2 times per month from January 2014 until July 2014 in order “to prepare him for his testimony”
HM was also shown the CAC video recording of his interview multiple times.

By the time trial began in July 2014, HM’s version of events evolved significantly.

There was NO “outcry” of abuse by anyone except the 1st boy who casually mentioned it to his mother

No other child had made an outcry of abuse.

Detective Chris Dailey spoke with the father of a child who attended the daycare. He told the man about Greg’s arrest and gave details of what he was accused of doing. (This is a violation of police department policy.)

Dailey asked the father to talk with his son, and bring him in to be interviewed.

The boy did not mention abuse when talking with counselors in his first interview at the CPS

The boy did not mention abuse when talking with counselors in his second interview at the CPS.

Dailey became frustrated with the boy’s unresponsiveness to the crime, and chose to interview the boy himself. As Keith Hampton described it, “Dailey burst into the room. The detective, who was armed, then cornered and grilled the terrified 4-year-old boy…Unsurprisingly, the little boy readily endorsed the detective’s leading suggestions.”

The defense lawyer “asked Dailey if he had learned in training that it was not a good idea for a detective to interview a child in a sexual abuse investigation.” “Correct”, he said.

The defense lawyer continued her questioning…

“How many seconds do you think you spent building rapport with him before you started asking him about allegations against Greg?” “I didn’t attempt to build rapport,“ said Dailey

Cummings asked Dailey what he said to Heather Bradley (CPS interviewer) after he finished interviewing the boy. “Do you remember telling her that YOU KNEW the manner in which you interviewed with direct questions was going to cause problems with the case?” “Yes,” said Dailey

Dailey finally got the boy to “say” that he was molested, but when the boy appeared in court, he said “no” to every attempt to make him say he was molested. Charges were dropped.

During the 3-day hearing in August 2017, Dailey was asked, “What is the ultimate goal of an investigation?” Sargent Dailey responded: “a successful prosecution.”

By his standards, Dailey got a successful prosecution. Dailey brought this case to trial, but he convicted the wrong person. He sent Greg Kelley to the state penitentiary for 25 years without the possibility of parole.

Following the Greg Kelley conviction, Cedar Park Chief of Police Sean Mannix promoted Detective Dailey to Sargent Chis Dailey.