Dallas defense lawyer John Helms offers his opinion on the evidentiary value of one person’s word and the special training required to interview child victims.
When Greg Kelley went to jail in 2014 after being convicted of super aggravated sexual assault , it was on the word of a 5-year-old child.
There was no eyewitness, no physical evidence, no confession. But when the little boy told his story of molestation at a Cedar Park in-home day care center, he told it in graphic detail.
The jury believed him. Kelley went to jail. He was sentenced to 25 years in prison without parole.
Now, in light of new evidence, Kelley’s conviction is under the microscope. Prosecutors have reopened the case, saying they have unearthed a new suspect and that further scrutiny is warranted.
Johnathan McCarty — whose mother ran the day care center — was arrested Thursday for a probation violation on an unrelated drug case and held on $450,000 bond. He hasn’t been charged with anything related to the sexual abuse case, but Williamson County District Attorney Shawn Dick confirmed that McCarty is a suspect.
The renewed attention brings back into focus the numerous concerns that plagued the Kelley case from the start, such as how police never looked for another suspect, never questioned all of the other people who lived in the house and used troublesome techniques while interviewing one of the children.
But it also highlights one of the biggest questions raised both then and now: How could prosecutors hinge a case largely on the testimony of a child who had just turned 4 at the time of the sexual assault?
Experts say child sex abuse cases can be challenging to prosecute in general. The abuse is secretive in nature, usually happening outside the view of other people. Perpetrators groom their victims and use that relationship to keep their victims quiet.
But children, even very young ones, rarely lie about abuse, said Ted Cross, a researcher with the Children and Family Research Center at the University of Illinois’ school of social work. While some parts of the child’s story might not be accurate, even children as young as Kelley’s accusers can truthfully describe the basic details of the incident, Cross said.
“It is more difficult with younger children, but the studies do suggest that even young children tend to tell the truth when they are interviewed the right way,” he said
One child’s word
Greg Kelley’s legal problems began in 2013. Back then, Kelley’s parents were ailing and the 18-year-old Leander High School football star — who was set to play at University of Texas at San Antonio — was staying with McCarty and his family for a few months.
That July, a then-4-year-old boy told his parents that Kelley had sexually assaulted him twice at the day care. A second boy stepped forward weeks later and told his parents that Kelley had made the boy touch him inappropriately. Kelly was charged with sexual assault and indecency with a child.
During the trial, one of the boys recanted, saying he had never been abused. The other remained steadfast.
On July 15, 2014, Kelley was convicted on two counts of super aggravated sexual assault.
The trial generated much discussion about the ways the legal system deals with children who make allegations of sexual abuse. Who interviews them and when, how they are interviewed, and how often, became major points in the trial.
Making a case on the word of one person, in general, can be challenging. There isn’t corroboration to bolster the story that jurors are expected to believe. But jurors don’t need more than one witness to convict, as long as they believe that one witness beyond a reasonable doubt, said John Helms, a Dallas defense attorney who specializes in these kinds of cases.
Even if the entire case is based on one person’s testimony and devoid of anything else, it can be enough for a jury, he said.
“I think it’s a common misconception that if there’s no physical evidence, no videotape, no media evidence that there is no evidence,” he said. “That’s not true. The testimony of the accuser who gets on the stand and testifies is evidence.”
Wendy A. Walsh, a research associate professor of sociology at the Crimes Against Children Research Center at the University of New Hampshire, has worked with other researchers to study prosecutions of such sexual assaults.
She said that in a study about those crimes, 27 percent rested solely on the disclosure of a child, and that most cases have other evidence that include facts that might point in the direction of a suspect such as eyewitnesses or physical evidence.
She pointed out, however, that research hasn’t broken down the age of the victims — whether they may have been young children or adolescents.
“It is a little surprising, just to have the testimony of a 4-year-old,” she said. “I am a little surprised by the young age of the child.”
Interviewing children is a very specialized task that is usually handled by experts, Helms said. Many communities have some sort of child advocacy center where trained professionals talk to children using specific techniques, such as asking open-ended questions and developing a rapport with the child before talking about the allegation. They try to interview the child only once, as experts say children run the risk of lying or telling different stories if they are interviewed numerous times.
“If a child has been abused, you know that everybody is going to want to talk to that child, and the more that goes on, the more confused a child will get,” said James Hord, a Florida psychologist who has testified in more than 2,000 child sexual abuse cases, told the American-Statesman in 2014 after Kelley’s conviction.
When getting the child’s story, it’s critical to get as many details as possible in order to bolster the child’s credibility, said Cross, of The Children and Family Research Center. If the child says he remembers a certain song on the radio, for example, it might be possible to get a copy of the station’s playlist.
It’s also important to investigate the crime scene, which could bolster the child’s account.
“There’s a lot of evidence you can get to support the credibility of the child,” Cross said.
In Kelley’s case, one of the boys said that his abuser was wearing SpongeBob SquarePants pajamas. McCarty was known to wear them to school with moccasins, Kelley’s legal team wrote in a court document unsealed this week.
“There’s no question that it’s very difficult on children and stressful and can be associated with a very great deal of distress,” Cross said.
Trained counselors at the Williamson County Children’s Advocacy Center conducted the first and second interviews of the second boy in the Kelley case. When he didn’t tell either of them he was abused, Cedar Park police Detective Chris Dailey conducted a third interview. He acknowledged during the trial that he went into the interview room with his gun on his hip and didn’t take the time to establish a rapport with the boy.
Being interviewed by a police officer “is very scary at that age,” Helms said.
At the time, Cedar Park Police Chief Sean Mannix stood by his detective, calling the move “irregular, but not improper.”
That boy later changed his story again at the trial, saying that Kelley didn’t touch him. The jury discounted his testimony, saying it was tainted.
Kelley was convicted of a crime that is fairly new in Texas.
The Legislature in 2007 enacted the law as part of a national movement to create harsher penalties for child predators after the murder of Jessica Lunsford, a Florida girl who was kidnapped, sexually assaulted and killed.
Under the new Texas law, if convicted, a person faces up to life without parole and a lifetime mandate to register as a sex offender if he or she sexually assaults a child under 6. But prosecutors point out that although the law holds perpetrators more accountable with harsher sentences, the cases involving young victims are among the hardest to pursue.
It is not unusual for authorities to pursue a case based solely on a child’s outcry, said Allison Benesch, a retired Travis County assistant district attorney who prosecuted sex crimes involving children for decades and teaches about such cases at the University of Texas law school.
She said prosecutors primarily look for consistency in any statements children might give to help determine the validity of their outcries, as well as other evidence that corroborates their claims. But if they share the same experience, or if there is additional evidence, the case is frequently determined legally sufficient to proceed.
“If there are inconsistencies in the child statements, then frequently the decision is made that it is not sufficient to proceed,” she said.
Originally published in MyStatesman.com,
By Andrea Ball