AUSTIN (KXAN) — The word “guilty” had not been uttered.
But as she waited to hear the jury’s verdict, Patricia Cummings could not help but notice an extra bailiff had been brought into the courtroom to stand next to her and her client, Gregory Kelley.
“I immediately knew that was bad news,” said Cummings on Thursday, a day after the conclusion of a trial she will play over in her head for a while. “I can’t sleep at night. I am always wondering, ‘my gosh what if I’d have just said this.’”
Kelley, a 19-year-old, will spend the next 25 years of his life in prison after being convicted of super aggravated sexual assault of a 4-year-old boy. A sentence he agreed to rather than risk the same jury sentencing him up to life.
But before the case went to trial, Kelley was given an opportunity to avoid prison time altogether, yet he declined. It was one of many key points in a case that Cummings called the most difficult of her 23-year career.
“What a responsibility you have when you believe your client is innocent.”
Devastation and heartache.
Those are the words Cummings said best described how she felt when she heard the verdict of guilty. Kelley put his head down on the defense table and did not raise it until instructed by bailiffs to do so. His many supporters audibly cried in the courtroom rows behind him.
The combination of a well-liked football star at Leander High School bringing an army of support in the courtroom and on social media coupled with an emotional topic such as sexual assault, especially with a 4-year-old victim, made the case extremely difficult for Cummings.
It was only amplified by a verdict she believes sent an innocent man to jail.
“I respect our jury system, I respect this jury, but I think they got it wrong,” she said.
The guilty verdict was announced after nearly 12 hours of deliberations and 11 of the 12 jurors left the courthouse quietly.
But one stayed to explain the decision to Cummings.
“What he said is they disregarded most everything and went back to the original statement made by the first victim to their mother,” said Cummings. “And they believed that was enough.”
The juror indicated to Cummings there were times during the trial where several jurors had strong feelings about Kelley’s innocence. But those feelings evolved and Cummings believed the burden of proof which is supposed to lie with the state got pushed to the defense.
“(The juror) said they kept waiting to hear why. Why would (the child) say that,” said Cummings about the outcry the 4-year-old victim made that Kelley made him perform oral sex at the home daycare where the boy stayed and where Kelley lived.
“Because they never got that answer, (the jury) believed the child.”
A conviction on a super aggravated sexual assault charge carries a punishment range between 25 years to life, meaning even the minimum sentence would put a 19-year-old in jail until he was 44.
The fact that reality hinged on a single statement is something that scares Cummings who pointed out many murder sentences end up being shorter than 25 years.
“It seems as if all they did was base their decision on that one initial statement made by a 4-year-old to a mother. That is what is so terribly frightening about this whole thing.”
DEALS DENIED AND ACCEPTED
But it did not have to come to this.
Not wanting to put the 4-year-old accusers through the tough interview and trial process, the Williamson County DA office was willing to give Kelley a plea deal. He would be sentenced to 10 years probation and avoid prison so long as he did not violate that probation. Registration as a sex offender for 20 years was also required.
The decision was up to Kelley and his family.
The answer was “no” and Cummings said it was one of the most difficult points in time during her representation of Kelley.
“Because as a lawyer, you know somebody like Greg would be successful on probation and you know he can have a life without ever setting foot into prison.”
But for Kelley and his family, they were willing to take the risk and Cummings believes it was a matter of standing by their principals.
“(Greg) said ‘I can’t do this because I can’t stand up in front of the world and say I am guilty of something I didn’t do.’”
However, the jury decided he did do it. And given the chance to make another deal before sentencing, Kelley decided this time to take what was on the table.
Twenty-five years in prison, the minimum for the offense of which he was convicted, but he would have to give up all appeals and would not be eligible for parole. But by giving up the fight, Cummings said it was not an admission of guilt.
“He was not saying that he committed the crime. He was saying that he stood on his principals, he took the chance, put it in the hands of the jury and it didn’t work.
Cummings visited Kelley in the Williamson County jail on Thursday where he is being held before being transferred to a prison intake facility.
“Greg is an amazing young man and I am sure me saying that will anger a lot of people,” said Cummings. She said Kelley has gone through all ranges of emotion since the verdict was read including disbelief and disillusionment.
But somehow hope remains within him according to Cummings
“Greg is a spiritual person and he believes the right thing will happen,” she said.
The only hope of freedom before 2039 would be if new evidence is produced which could prove Kelley’s actual innocence. Kelley’s mother said after the sentence was announced her son agreed to 25 years because he will be out of prison at age 44 and still have enough time to do something with his life.
Whether the system worked and put away a child molester for a quarter-century or whether Kelley’s name will join Michael Morton’s as a Williamson County tragedy may never be truly known.
Still, that will not stop Cummings from wondering.
“I am questioning everything I did. And I don’t know when that is going to stop.”
About 200 friends and supports held a rally Thursday in support of Kelley at Leander High School.
“There’s been an injustice here,” one supporter said. “This is wrong. This should have never seen a courtroom.”
The district pointed out on Twitter that the event was not school-sponsored.