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WilCo prosecutors poke holes in Kelley investigation

Greg Kelley is getting his day in court. Friends and family have waited three years for the chance to prove he's not guilty of sexual assaulting a child. In 2013 he was arrested and charged. In 2014 Kelley was sentenced to 25 years in prison. (CBS Austin)

Greg Kelley is getting his day in court. Friends and family have waited three years for the chance to prove he's not guilty of sexual assaulting a child. In 2013 he was arrested and charged. In 2014 Kelley was sentenced to 25 years in prison.

"I am so proud to be Greg Kelley's mom because he keeps me going," said Rosa Kelley.

Kelley's attorney, Keith Hampton, has worked endlessly to get a hearing in which he can present new evidence that an alternate suspect is to blame for the crime. Wednesday afternoon the hearing started with Hampton presenting witnesses from Cedar Park Police, Kelley's family and a then-prosecutor.

Instead of defending the conviction, the Williamson County District Attorney's office repeatedly asked questions that poked holes in the investigation and implied the lead Cedar Park Police detective -- now sergeant -- did not do a thorough investigation.

The first witness called was Cedar Park Police officer Kevin Freed. Freed took the original sexual assault report when the victim's father showed up at the police station in July 2013. Freed testified he did not record his initial interview with the victim's father, but the father did write a three-page statement. Freed says he contacted CPS and through investigative work found the sexual assault must have occurred at an in-home daycare run by the McCarty family on July 12, 2013.

The second witness was Kelley's brother, Aldo Berduo. Berduo testified Kelley was helping him move from 9 a.m. until 5:30 p.m. on the day the sexual assault happened. Berduo explained, for the 2012-2013 school year, Kelley had been living with his classmate Jonathan McCarty because Kelley's father had a stroke and his mother was recovering from multiple brain surgeries. Berduo said the family decided Kelley would live with the McCartys because they lived near Leander High School and Kelley could easily get to school and football practice. Berduo testified Kelley moved back in with his mother, Rosa Kelley, on June 11, 2013. He said he remembers the date because school ended the first week of June.

The defense's third witness was Cedar Park Police Sgt. Christopher Dailey who investigated the Kelley case. Hampton pressed Dailey about why he disregarded department policy and deleted a series of emails with CPS related to the Kelley case. Dailey told the court he "didn't think they had any evidentiary value in the case." Hampton said the CPS employee deleted the emails too and asked Dailey if he knew why. Dailey said he did not coordinate any email deletion.

Prosecutors with the district attorney's office then asked Dailey a series of questions revealing what appeared to be a less-than-thorough investigation by Sgt. Dailey. Under oath, Dailey said he never physically went to the scene of the crime, he did not take photographs or interview any other adults who were regularly in the home where the child sexual assault happened. Attorneys went on to reveal that at one point one of the victims said Jonathan McCarty and Greg Kelley were involved in the sexual assault. Dailey told the court he didn't follow up on the McCarty lead or interview McCarty because he thought the victim was confused.

After a short courtroom break, the State asked Dailey if children are considered more credible victims than adults. Dailey answered that children are more credible victims. The State asked how that can be when children have a tendency to get confused and be led by suggestion. Dailey admits the child victim did get some things confused during the investigation but he's confident the child did not get confused about the identification of the suspect. The DA's office showed Dailey two side-by-side football photos of Kelley and McCarty who looked very similar at the time. When asked if a 4-year-old could have gotten the two confused, Dailey replied, "no."

The DA's office then asked Dailey if he was familiar with The Golden Rule. "Would you want someone to thoroughly investigate allegations against you?" asked prosecutor Rene Gonzales who is the Williamson County DA's office appellate division chief.

The fourth and final witness of the day was Judge Stacy Matthews who was a prosecutor in the DA's office at the time of the Kelley investigation and trial. Matthews testified she was not assigned to the Kelley case but did hear some details of the case when Sgt. Dailey called the DA's office with a question and she was the only prosecutor available to take the call. Matthews said Dailey told her a second potential victim had come forward but after three interviews the child did not make an outcry of sexual assault. Matthews said she was surprised to learn Dailey had conducted one of the three interviews himself because it is not common practice for police officers to interview 4-year-olds. Matthews testified Dailey told her he wanted to file additional charges because "it would strengthen the first case." Matthews said she advised Dailey against filing additional charges until more investigating was done.

Just before 4 p.m. Wednesday Judge Donna King adjourned the hearing for the day. After the hearing, Kelley's friends and family expressed frustration with the new information they'd heard in court.

"I couldn't tell who our lawyer was today because the prosecution and the defense were both appalled by the lack of investigation that Cedar Park did. We deserve better. The reason that Williamson County has the reputation that it does is because it starts with bad police work," said Jake Brydon, a Greg Kelley supporter and concerned citizen.

Williamson County District Attorney Shawn Dick said the case is challenging because there's no new DNA evidence or an alternate suspect confession to support Kelley's innocence claim.

"It's made it very complicated to figure out what's the truth and what happened four years ago and what didn't happen four years ago," Dick said. He added, he doesn't know how the next few days of the hearing will go, but he hopes at the end they can get to the truth.

"My goal has always been clarity. I am afraid that we won't get there, and sometimes you get results in cases that are unsatisfying but I certainly hope we get to the truth," Dick said.

Kelley's attorney alleges Jonathan McCarty committed the crime Kelley is serving time for. McCarty was a friend of Kelley's at the time and his mother ran the in-home daycare where the sexual assault happened.

Kelley's hearing will resume at 9 a.m. Thursday and is expected to last through Friday. Judge King will eventually make a recommendation to the Court of Criminal Appeals to either uphold Kelley's convection, grant him a new trial or declare him innocent. The process of coming to a final decision could take weeks or even months.

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