GEORGETOWN, Texas (KXAN) — Sentenced to 25 years in prison after being found guilty of super aggravated sexual assault of a child in 2014 for incidents at an in-home day care, Greg Kelley could have a second chance.
Williamson County District Attorney Shawn Dick says his office has reopened the investigation into Kelley’s sexual assault case because of new evidence that was brought forth by Kelley’s defense team. Dick says the defense claims they have “credible evidence that someone else committed the crime.” That someone else, according to the defense, is a young man who played on the Leander High School football team with Kelley and who also lived in the house where the sexual assault took place.
“These are difficult cases to prove whether someone did it, but it’s also very difficult cases to prove whether someone didn’t do it,” Dick said.
Then 19 years old, Kelley was accused by a 4-year-old boy who made comments to his parents about performing oral sex on him. Kelley had testified during his trial that he was living apart from his family and was staying at a Cedar Park home that doubled as a day care so he could continue attending Leander schools, where he played football.
Kelley said children staying at the day care would still be at the house when he arrived home after football practice. “I’d go over there, give them a high five, see how they are doing,” said Kelley. “A couple would run around the kitchen when I’d eat.”
The day care’s owner, Shama McCarty, testified that she did not believe Kelley was guilty of the charges.
Newly filed court documents show Kelley’s defense attorneys believe another teenager who was living in the house is actually responsible for the crime. They also believe based on Kelley’s cellphone records, he was not at the home when the sexual assault took place.
The defense also claims the other suspect had pictures of children on his phone, including naked ones and the man bears a striking resemblance to Kelley, so their argument is that the victim could have made a mistake in identifying who his abuser was.
“So that’s really why we are investigating this is to make sure we have the right person and hopefully the wrong person isn’t out there potentially committing other violations,” Dick said. During the trial, the victim said his assailant wore Spongebob pajamas. According to Kelley’s attorneys, witnesses say the second suspect wore those pajamas to school and around the McCarty household.
The documents argue not only is Kelley innocent, but the other man told friends three months after the trial he sexually assaulted the child.
“If we got it right, I want the public to understand what we did and how we got it right and if we got it wrong then we need to make sure we fix it,” Dick said.
By taking a plea deal, Kelley, now 22 years old, was sentenced to the minimum sentence of 25 years and also waived his right to appeal.
His attorneys attempted to get a new hearing in 2015, saying new evidence would prove his innocence. In evidence that was not presented at the original trial, Kelley’s attorney Keith Hampton said he broke down his client’s cellphone and has GPS data, photographs, thousands of text messages and witnesses that will account for Kelley’s location for 192 days when the victim was checked into the daycare center. In February of 2016, the Third Circuit Court of Appeals denied Kelley a new hearing because his counsel did not include any evidence “to establish Kelley’s whereabouts and fall short of demonstrating that Kelley was, in fact, not present at the McCarty home at the time of the alleged abuse.”
A new court hearing to present the evidence is scheduled for Aug. 3 and 4. A judge will determine if there is enough evidence to send the case to the Third Court of Criminal Appeals for review.
Kelley is currently housed in the Wynne unit in Huntsville. His scheduled release date is July 12, 2039.