8 minute read
PRESERVING, PROTECTING, AND DEFENDING THE LAW
Fby Ann Marie Kennon indings of actual innocence are rare in the justice system. In cases of child sexual abuse, a finding of actual innocence without a victim recantation, or DNA evidence is unheard of. But that is exactly what Judge Donna King spent nine months tackling on the Greg Kelley case.
Judge King explains, “A judge receives new evidence and weighs it in conjunction with the old. The duty, simply put, is to consider, ‘If the jury knew then what I know now, would they have still convicted?’ In the original trial, unfortunately for Mr. Kelley, the jury did not hear all the information that would have acquitted him, a significant portion of which existed at the time of his original trial.”
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Even more rare is that because new evidence for Greg’s claim of actual innocence did not fall within the normal grounds for which relief is granted, his case established an entirely new category.
There being no DNA or victim recantation in Greg’s case, the resulting legal basis focused on the validity of new circumstantial evidence. The new evidence included old evidence never pursued; a conflict of interest that existed with his original trial attorney, who had represented several members of the family of the owner of the day care center where the assault occurred; and deficiencies in the initial law enforcement investigation.
The Judge illustrates; “Let’s say a conviction was based on Facts A, B, and C; but a legal team keeps the case alive and gathers new evidence, as [Greg’s girlfriend] Gaebri was diligent in doing. The legal team then presents a Writ of Habeas Corpus to the trial court, based on A-C, and adds Facts D, E, and F. The totality of all of those facts leads to a new conclusion.
“It was my solemn duty, with many boxes covering my floors, to pore over the trial transcripts, exhibits, and videos; and conduct a new inquiry, listening to many, many new witnesses. I came to believe it had been a perfect storm, with all parties blinded to a certain extent by tunnel vision where the suspect was concerned. There were also some who turned a blind eye to the suggestive and persuasive interrogations that resulted in a second charge with another child at the daycare. The prosecutors at Greg’s trial did not appropriately question the second charge, which ultimately strengthened their first case against Mr. Kelley.”
In July, Showtime network aired a five-part documentary series about the trial, conviction, and exoneration of Greg Kelley.
Donna King was the Judge upon whom rested the immense, and unusual burden of getting, finally, to the truth.
KELLEY’S IMPACT
After Judge King made her findings, they had to be reviewed and decided upon by the Court of Criminal Appeals before Greg could be exonerated. The Court did
Photo by Donnie Boyd
HABEUS CORPUS
(release the body) Convicted persons may file this writ to compel law enforcement to bring them to court to determine if they are being held legally. Writs may be filed at any time. Because Greg
Kelley waived his right to appeal, the writ sent to Judge King requested relief based on a foundation of Constitutional violations, and actual innocence.
not write an opinion on why they unanimously agreed with Judge King, but she suggests that their Order affirming her determination that Greg be declared “actually innocent” opens pathways for future defendants to seek relief as Greg did. She cautions that this type of relief claim is very narrow—it might apply to fewer than one in 100,000 cases. “Habeus corpus is very case-specific, and there will be people in the system who throw everything they can at a writ. If the court had filed an opinion with their ruling, essentially explaining why they ruled, it might open the door to many subjective interpretations. We must, however, always consider writs of this type because justice requires it.”
WEIGHTY RESPONSIBILITY
Drilling down on a writ of this type, she says, a judge must determine if there is a legal issue; a Constitutional violation that needs further examination. “The judge ‘drives the train on the process.’ I have a toolbox of options allowed by the law and I can choose to just review the claims, or have a hearing to consider the claims fully. Beyond the legal responsibilities of my office, I struggled personally to be certain that my decision was about truth; not allowing a guilty person back on the street because of a technicality. It was equally important not to send an innocent person back to prison for a crime not proven in the original trial.”
Although this kind of case is rare, Judge King says she had a feeling it would be coming to her even before she took her oath of office. The guilty verdict was rendered in July 2014 and she was appointed to the bench in October of that same year. She received the writ in early 2017 and studied it day and night, outside her regular docket, for nine months before making a determination of innocence. “As a trial lawyer and a judge, Greg’s case opened my eyes not only to the real possibility of justice not being served, but being completely and systemically denied from day one. None of the safety nets we take for granted worked for him, and for everything that went wrong in the first trial process, it took a monumental effort to fix it.”
THE JUSTICE COMMUNITY
Having been a criminal attorney for 22 years prior, the Judge says this was the most challenging case of her career. While there is always great emotion and a sense of urgency with a child victim, she always had confidence in the system in which she worked. “This is a county where we all know each other; lawyers, prosecutors, police officers, and former judges; we are tight knit. It was a strange dynamic to perform an ‘autopsy’ on the system that came down to people I knew. It is even more astonishing when you consider how recently Michael Morton suffered the same injustice.”
Judge King says she felt great satisfaction when word came that her findings would stand, and Greg would be officially declared innocent. “It was a waiting game for nearly two years while the Court of Criminal Appeals made its determination. You would think I would have worried more over time, but the longer I was removed from it, the more comfort I felt. Originally, when I turned over my findings, I sort of went through a grieving process, because it was all very personal. It was traumatic upending a justice system and process that included colleagues whom I respected; I was shocked and disappointed by what I found when I was doing my job. But as time went on, I was able to put things in proper perspective and rejoice that the court reached the same conclusion. I was grateful we all had closure.”
At the end, Greg was the only original player, but Judge King, District Attorney Shawn Dick, and Greg’s attorney Keith Hampton recognized that success was H H H ONEST OMETOWN EALTHCARE due to no one in particular. “It hit all of us what we had been a part of. I count my blessings to have been part of a process that was so important. Williamson County and our justice system are my home and, while we can’t change what happened, we have obligations to uphold the duties of our offices. The system works when everyone is committed to their best, and the roles they have; police, defense attorneys, prosecutors, jurors, and judges.”
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