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greg kelley's guilty verdict overturned


hayden_horn

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Pretty good show.  I have to really disagree with people defending Cummings.  If the following is correct (hard to remember everything) then she absolutely should have withdrawn.

The McCarty's, apparently, recommended Cummings to Greg.  This seems fine and logical as the McCarty's had used her before.  Nothing sinister.  However, when Cumming's own investigator said they needed to look at Jonathan, she should have recused herself.  The argument that she asked Greg about that approach is not credible.  He is not an expert in criminal law and criminal defense techniques.   At one point in the interview with the second victim the victim actually said the person that he was with was "Jonathan".  He was asked again and said the same thing.  A decent defense attorney could get that tid bit in while still claiming the acts did not happen.  It just shows how tenuous the memories and testimony of small children can be.  It also gives the jury a possible other suspect if they believe something did happen but not sure it was Greg.  No reason at all not to get it on the record.  Conflict is not always obvious but it helps to look at it from the other perspective.  If it were found out later that the prosecutor had a personal relationship with the McCartys and had evidence that Jonathan could be involved and buried that evidence, everyone would rightfully be outraged.  

The timeline is also something she should have gone after.  By seemingly all accounts, a sexual assault crime reported in mid July was almost certainly to have occurred recently.  This should have been pressed much harder.  Again, it can be easily incorporated into the "no crime occurred" angle.  The boy accused Greg at a time when Greg was no longer there.

The thing about juries, and people in general, is that everyone has their own opinion about things and different evidence is viewed differently by different people.  As a result, every potential angle that sheds doubt should be included.  

Lastly, to me, the really shitty thing Cummings did was her testimony at the hearing.  People are now saying she neeeded to preserve her reputation etc.  Those are not invalid points.  However, she was interviewed by Hampton many, many times about what she would testify to.  There was a clear understanding of what she would say.  Then, on the day of or day before the hearing, she changed her tune.  That is bullsht to me.  If she did not want to get involved or wanted to protect her image then say that in the beginning.  Not after hours and hours of prep work by all involved.  Total chickenshit move. 

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8 minutes ago, Gourmand said:

 

He filed ineffective assistance claims against her, of course he believes that and he is not going to admit in a documentary that it was just a tactical maneuver on his part to get Kelley a new trial. He declared war on her and she fought back. Her fight was not with Kelley but Hampton.  I don't understand why anyone would expect her to act any differently in defending her professional reputation, especially in light of the fact that she adamantly believed in her former client's innocence and did express those regrets you alluded to after his conviction. She made a tactical legal mistake, that is self-evident but it is also with the benefit of six years of hindsight. I suggest you read the concurring opinion you'll see that her defense of Kelley at trial was not as incompetent as Hampton claims it to be. 

https://cases.justia.com/texas/court-of-criminal-appeals/2019-wr-87-470-01-0.pdf?ts=1573057145

 

This line of thinking is completely ridiculous considering how Cummings changed her entire approach the day of the hearing.  It is inexcusable.  She leads them on for hours and hours and hours of work and prep time and strategy etc preparing for the hearing.  She is a huge part of their case.  She knows this and is helping all the way up to the end. Then at the last minute decides her professional reputation is more important than her client getting out of prison for a crime he did not commit.  

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12 minutes ago, sheeeit said:

Pretty good show.  I have to really disagree with people defending Cummings.  If the following is correct (hard to remember everything) then she absolutely should have withdrawn.

The McCarty's, apparently, recommended Cummings to Greg.  This seems fine and logical as the McCarty's had used her before.  Nothing sinister.  However, when Cumming's own investigator said they needed to look at Jonathan, she should have recused herself. . 

Why? She never represented him, she interviewed him, she had no personal relationship with him or his family. Why would Jonathan's name being mentioned by her own investigator necessitate her recusing herself from her defense of Kelley? I don't follow. 

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17 minutes ago, Dr. Beeper said:

Egos, man....he didn’t “declare war” against her. He was trying to get his client freed. Which he accomplished. Her counsel was woefully ineffective. I don’t know what the argument is here. 

Our every day definition of ineffective is not necessarily the same as the legal definition under a Sixth Amendment claim. A defendant has to show that the lawyer's performance was unreasonable under the circumstances and that the accused was prejudiced by that performance. The name "Greg" was mentioned on a multiple occasions during the CAC interviews and also to the parent of the first victim. It is entirely reasonable to think that a jury is not going to buy an alternate suspect argument when you have TWO children naming Greg as their assailant and one of them saying "I wish my pee pee was big like Greg's." It is perfectly reasonable to advise the accused client that this is a weaker strategy than the one she adopted, which is also the same argument Hampton and Shawn Dick have made as well. (i.e. attacking the CAC interviews and the Cedar Park police investigation.)

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41 minutes ago, Gourmand said:

 

He filed ineffective assistance claims against her, of course he believes that and he is not going to admit in a documentary that it was just a tactical maneuver on his part to get Kelley a new trial. He declared war on her and she fought back. Her fight was not with Kelley but Hampton.  I don't understand why anyone would expect her to act any differently in defending her professional reputation, especially in light of the fact that she adamantly believed in her former client's innocence and did express those regrets you alluded to after his conviction. She made a tactical legal mistake, that is self-evident but it is also with the benefit of six years of hindsight. I suggest you read the concurring opinion you'll see that her defense of Kelley at trial was not as incompetent as Hampton claims it to be. 

https://cases.justia.com/texas/court-of-criminal-appeals/2019-wr-87-470-01-0.pdf?ts=1573057145

 

Plenty of people have admitted they were wrong and done the right thing, even if it means sacrificing their professional reputation a little bit. She just went the route of “I have to protect my reputation at all costs, even if it’s at the expense of someone else’s life.”
 

She has every right to do that. And I’m not saying a certain percentage of people wouldn’t do exactly that, but let’s not pretend like everyone would approach it that way. 

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29 minutes ago, sheeeit said:

This line of thinking is completely ridiculous considering how Cummings changed her entire approach the day of the hearing.  It is inexcusable.  She leads them on for hours and hours and hours of work and prep time and strategy etc preparing for the hearing.  She is a huge part of their case.  She knows this and is helping all the way up to the end. Then at the last minute decides her professional reputation is more important than her client getting out of prison for a crime he did not commit.  

Couldn’t have said it better myself. She knew exactly what she was doing. 

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41 minutes ago, sheeeit said:

This line of thinking is completely ridiculous considering how Cummings changed her entire approach the day of the hearing.  It is inexcusable.  She leads them on for hours and hours and hours of work and prep time and strategy etc preparing for the hearing.  She is a huge part of their case.  She knows this and is helping all the way up to the end. Then at the last minute decides her professional reputation is more important than her client getting out of prison for a crime he did not commit.  

Explain. 

She had been hit with an ineffective counsel claim. If you go back to pg 3 of this thread, Frank the Tank hits the nail on the head. She was put in the position by Keith Hampton where she now has an adversarial relationship with Kelley and Hampton. She legitimately believed in Kelley's innocence and her defense of him. So now that Hampton has her in his crosshairs, what the fuck is she supposed to do, let them dog her reputation?

 

https://cbsaustin.com/news/local/greg-kelleys-2014-lawyer-fighting-attorney-client-privilege-restrictions

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I realize I must sound crazy to you and you're probably wondering why the hell I give a shit, I guess it's just one of those times when you feel convinced of something and can't believe that others don't see it the same way. I've followed the case, I've read the news stories, I've read the concurring opinion, and I think Outcry tells a compelling story. However, I think the series takes some liberties with its characterization of her defense because it makes for a much better story. I'll give you one example--they make a big deal about in court ID by the child victims but that is not required under the law. Identification for child assault victims or witnesses can be proved by circumstantial evidence, and Greg Kelley's identification was not at issue. That's not how it is presented in Outcry. 

 

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35 minutes ago, Gourmand said:

Why? She never represented him, she interviewed him, she had no personal relationship with him or his family. Why would Jonathan's name being mentioned by her own investigator necessitate her recusing herself from her defense of Kelley? I don't follow. 

We have conflict causes for very good reasons.  I believe that most people can do their job without the necessity of being conflicted out.  But human nature is human nature.  Cummings admittedly and clearly had a professional and personal relationship with the McCartys.  She admitted on the stand that they were "friends" before this ordeal.  How can you not see that if a "friend" recommended you to defend someone else and in the course of that defense there existed evidence that would require you to essentially accuse your "friends" son of being a child molester that there might be a conflict?  This isn't even a close call.  

How would you feel if your child was on trial for child molestation and you found out after the fact that there was credible evidence that another person may have been responsible but your attorney decided not to pursue that angle and then you found out your attorney was friends with the family of the other person?  I would hope you would be so mad you would have to be restrained.  

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46 minutes ago, sheeeit said:

This line of thinking is completely ridiculous considering how Cummings changed her entire approach the day of the hearing.  It is inexcusable.  She leads them on for hours and hours and hours of work and prep time and strategy etc preparing for the hearing.  She is a huge part of their case.  She knows this and is helping all the way up to the end. Then at the last minute decides her professional reputation is more important than her client getting out of prison for a crime he did not commit.  

Do you have some information that Cummings changed her approach the day of the hearing?  Up and until the start of the hearing, Cummings was facing an ineffective assistance of counsel claim in the form of the writ Hampton filed on behalf of Kelley.  She had a copy of the writ and was prepared to fully address the facts and allegation of the writ.  That is what the assistant DAs had been preparing for because that is something that routinely, if not almost always, happens in these types of hearings.

Keith Hampton changed his approach the day of the hearing because he didn't want Cummings to fully testify as to the facts underlying her defense strategy in the case.  I cannot get into his head but I suspect that he felt, at a minimum, Cummings fully testimony could have been problematic with getting Judge King and the COA to rule in Kelley's favor.

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2 hours ago, Gourmand said:

This idea that there was no consideration by Cummings of an alternate suspect defense is completely false. She did consider it and interviewed Jonathan multiple times but wasn't convinced that this was the better strategy at trial because she didn't find their likeness persuasive.

Curious as to where this information is that she vetted the McCarty defense and interviewed him multiple times before deciding against using that.  That's interesting if it is in fact true and I missed it or it wasn't presented in the doc but has been reported elsewhere.   

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Just now, sheeeit said:

We have conflict causes for very good reasons.  I believe that most people can do their job without the necessity of being conflicted out.  But human nature is human nature.  Cummings admittedly and clearly had a professional and personal relationship with the McCartys.  She admitted on the stand that they were "friends" before this ordeal.  How can you not see that if a "friend" recommended you to defend someone else and in the course of that defense there existed evidence that would require you to essentially accuse your "friends" son of being a child molester that there might be a conflict?  This isn't even a close call.  

How would you feel if your child was on trial for child molestation and you found out after the fact that there was credible evidence that another person may have been responsible but your attorney decided not to pursue that angle and then you found out your attorney was friends with the family of the other person?  I would hope you would be so mad you would have to be restrained.  

She said they were "friendly" not that they had a personal relationship. There's a big difference.

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1 minute ago, Reagan1k said:

Curious as to where this information is that she vetted the McCarty defense and interviewed him multiple times before deciding against using that.  That's interesting if it is in fact true and I missed it or it wasn't presented in the doc but has been reported elsewhere.   

It's in the CCA concurrence.

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2 minutes ago, sheeeit said:

She admitted on the stand that they were "friends" before this ordeal.

I think that she characterized their relationship as friendly not that they were friends.  I'm not going to say there was or wasn't a potential or actual conflict, because we don't have sufficient facts to make that determination based upon what was shown on this documentary.

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13 minutes ago, Gourmand said:

Explain. 

She had been hit with an ineffective counsel claim. If you go back to pg 3 of this thread, Frank the Tank hits the nail on the head. She was put in the position by Keith Hampton where she now has an adversarial relationship with Kelley and Hampton. She legitimately believed in Kelley's innocence and her defense of him. So now that Hampton has her in his crosshairs, what the fuck is she supposed to do, let them dog her reputation?

Maybe you are just being obtuse, but you are completely either ignoring my point or just do not understand it.  I clearly stated that Cummings was well within her right to not want her reputation tarnished.  I would not do it that way but I can understand why someone would.  What is impossible to understand is the fact that Cummings worked with the defense team over a large amount of time and actively participated with the defense team on the case.  She was a huge part of their legal strategy and she knew it.  She then sabotaged them right before the hearing which prevented them from using a different strategy.  That is text book chickenshit behavior.  

Further, her lame excuse that she would have to divulge certain things that might be harmful to greg is also ridiculous.  She only had to answer the questions she was going to be asked.  Both the prosecutor and defense were on the same page and both wanted the conviction overturned.  No one was going to ask any questions that would require her to tarnish her former client.  

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1 minute ago, AUS-97HORN said:

are you purposely ignoring the posts that answer your questions?

as has been said very recently on this page, and in the documentary itself, she was interviewed, prepped and participated in Hampton's plans and pre-interviews before the Writ hearing.

She was scheduled to testify for the last of the 3 days of the hearing.  The date didnt sneak up on her, and her willingness to cooperate and allow the prep work for Hampton's questioning meant they spent multiple hours together organizing what they needed to ask about.

At the actual old-school definition "literal last second" she walked into the courtroom that last day and suddenly decided to attack Greg causing Hampton to have to completely change up his plans.   

She had every right to become obstinate and only answer basic questions in the writ hearing. 

But the issue is she gave no indication she was going to do that until the morning of her getting on the stand.     

So she was completely cooperative the days leading up to her getting on the stand, but suddenly she stopped helping, and even worse, (if Hampton is to be believed), she was planning on effectively attacking Greg and tank his appeals if he continued with the ineffective council defense.    That is literally hours upon hours, upon hours of prep-work, plans, presentations all thrown out the door the morning of the final day.  If she had said she wouldnt help from the very beginning, Hampton could have prepared accordingly. 

This is the weakest part of Outcry imo because, as previously alluded to upthread, the back-and-forth legalese chess match about her testimony and atty/client privilege was not covered well at all and only briefly explained by Hampton, to his argument's benefit.We do not know what communications she had with Dick and Hampton leading up to the hearing that day and we also do not know what information was in the affidavit she filed with the trial court detailing her defense of Kelley. 

 

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12 minutes ago, Jerry Callo said:

 

Keith Hampton changed his approach the day of the hearing because he didn't want Cummings to fully testify as to the facts underlying her defense strategy in the case.  I cannot get into his head but I suspect that he felt, at a minimum, Cummings fully testimony could have been problematic with getting Judge King and the COA to rule in Kelley's favor.

Exactly. They had a hearing in chambers and he got to see everything she was prepared to say, so he withdraws his ineffective assistance claim. But we're supposed to believe Hampton's version of events only in Outcry and not consider that maybe, just maybe, Cummings wasn't as inept as he made her out to be.  

 

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6 minutes ago, Gourmand said:

She said they were "friendly" not that they had a personal relationship. There's a big difference.

Well I am sure that distinction is a great relief to the guy that sat in prison for 3-4 years.

Again, how would anyone feel if their kid was on trial for child molestation, and their attorney failed to pursue a potential alternative suspect, and you later found out that your attorney had previously (even if it was years ago) defended members of the family, was recommended to you by that family and had an admittedly "friendly" relationship with them?  I would certainly think that any reasonable person would realize that it would be very hard for Cummings to aggressively go after the kid of the family she was friendly with and that had recommended her for the job. 

Again, we are talking about the defense strategy.  It does not matter one bit if Cummings thought that Jonathon had anything to do with the crime.  Not one bit.  It only matters if pursing the angle helps her client.  You will never convince me, or any rational person, that if there was another person that had the exact same access to the kids as Greg, was present at the house when the crimes likely occurred (especially since your client was not present at that time), that looked similar to Greg and that one of the actual fucking victims named directly 2 times in their interview as the one that did it, that that would not be incredibly powerful to the defense.  I assume you saw the video interview of the kid who said Jonathan did it?  Said it twice.  That is probably reasonable doubt all by itself.  Not innocence necessarily, but certainly enough doubt that, absent of any physical evidence (or really any evidence) other than the word of a child, that the child may have gotten it wrong.

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24 minutes ago, Jerry Callo said:

I think that she characterized their relationship as friendly not that they were friends.  I'm not going to say there was or wasn't a potential or actual conflict, because we don't have sufficient facts to make that determination based upon what was shown on this documentary.

If I recall you are an attorney?  If a person that you were just friendly with, not close, and was someone that you had worked for in the past representing their family members (assume you did a good job for them since they are referring you) and in the course of your investigation it became clear that one of their kids might have actually been the perp, what would you do?  I would guess that you would investigate that angle aggressively.  Perhaps assign another attorney in your firm or your investigator to do it so that there is not even the slightest hint of a conflict.  The one thing I would not think you would do, would be to shut down your investigator from even looking into that angle.  I agree of course that hindsight is easy, but, as we have come to find out, when they got Jonathan's phone there were pictures of naked little boys on it.  Jonathan admitted it but said it was his cousin or something.  But, as the defense attorney for Greg, wouldn't you consider that evidence to be extremely strong and extremely beneficial to your client?  This was not some fishing expedition either where it had the potential to smear an innocent kid.  Cummings own investigator found the evidence that Jonathan might be a suspect.  At a very minimum, she should have told her investigator to get everything he possibly could on Jonathan.  Doesn't mean she had to use it or that it would have been found.  But to stop it in its tracks( again even if it were in her best professional judgement that it would not help her client- which is absurd since she did not allow the investigation to continue) just looks horrible based on her previous relationship with the family.

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If I thought there was a potential conflict, I would have advised the client of it and would have had the client sign a conflict waiver.  If there was an actual conflict, I wouldn't have taken the case.  However, I can not judge what Cummings did or didn't do based upon that documentary.

If you haven't read the CCA opinion linked above, its worth the read to get a fuller picture of the facts.

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19 minutes ago, sheeeit said:

Well I am sure that distinction is a great relief to the guy that sat in prison for 3-4 years

We agree that Greg Kelley is a victim here, but he was not victimized by Patricia Cummings. He was victimized by the Cedar Park police department and the Williamson County DA.

 

20 minutes ago, sheeeit said:

Again, how would anyone feel if their kid was on trial for child molestation, and their attorney failed to pursue a potential alternative suspect, and you later found out that your attorney had previously (even if it was years ago) defended members of the family, was recommended to you by that family and had an admittedly "friendly" relationship with them?  I would certainly think that any reasonable person would realize that it would be very hard for Cummings to aggressively go after the kid of the family she was friendly with and that had recommended her for the job. 

I understand,  I had the same perspective back in 2017 when this came back in the news and I was mildly outraged about it. I mistakenly assumed that Cummings was like the McCarty family consigliere or something and had a close relationship with them. As it turns out, that is not even close to accurate. She never had a personal relationship with anyone in the family, never represented Jonathan, and her representation of the McCarty brothers was six years earlier. How is that a conflict of interest? She had no demonstrable allegiance to any of them over her then-client, Greg Kelley.

 

25 minutes ago, sheeeit said:

Again, we are talking about the defense strategy.  It does not matter one bit if Cummings thought that Jonathon had anything to do with the crime.  Not one bit.  It only matters if pursing the angle helps her client.  You will never convince me, or any rational person, that if there was another person that had the exact same access to the kids as Greg, was present at the house when the crimes likely occurred (especially since your client was not present at that time), that looked similar to Greg and that one of the actual fucking victims named directly 2 times in their interview as the one that did it, that that would not be incredibly powerful to the defense.  I assume you saw the video interview of the kid who said Jonathan did it?  Said it twice.  That is probably reasonable doubt all by itself.  Not innocence necessarily, but certainly enough doubt that, absent of any physical evidence (or really any evidence) other than the word of a child, that the child may have gotten it wrong.

She considered that argument and thought it was weaker than the argument she ultimately chose because she believed that a jury was highly likely to believe the children's identification of Greg Kelley. He was named by both children multiple times. Plus, victim one named "Greg" to his mom. That is a tough hurdle for any defense attorney to overcome. And can you not consider what the prosecution would do if she had presented Jonathan as an alternate suspect? They looked a lot alike, but they weren't twins. They were noticeably different in height and they had different voices and they had been around both boys enough that the prosecution could argue the two boys knew Greg vs Jonathan. 

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49 minutes ago, Jerry Callo said:

Do you have some information that Cummings changed her approach the day of the hearing?  Up and until the start of the hearing, Cummings was facing an ineffective assistance of counsel claim in the form of the writ Hampton filed on behalf of Kelley.  She had a copy of the writ and was prepared to fully address the facts and allegation of the writ.  That is what the assistant DAs had been preparing for because that is something that routinely, if not almost always, happens in these types of hearings.

Keith Hampton changed his approach the day of the hearing because he didn't want Cummings to fully testify as to the facts underlying her defense strategy in the case.  I cannot get into his head but I suspect that he felt, at a minimum, Cummings fully testimony could have been problematic with getting Judge King and the COA to rule in Kelley's favor.

Again, you are the attorney, but in Cummings affidavit she states that she had met with Hampton at least once previously to discuss the case.  Obviously, you would met with your witnesses prior to the hearing to know what they are going to say and prepare your case.  

Of course we do not know exactly what transpired at the previous meeting but we do know that Cummings did not have an attorney present and that after the meeting, Hampton fully prepared to call her to testify based on the answers she gave.  According to Hampton, on the day of her testimony Cummings suddenly had an attorney and the affidavit Cummings wanted to introduce at the hearing was much different than what she had said in their previous meeting.  

Hampton called Cummings to testify based on what she said at the previous meeting.  Suddenly on the day of her testimony, she is changing her story.  Or, perhaps more accurately, she is adding to and enhancing her story in a way that would be harmful to Hampton's client.  Cummings is smart and is certainly aware of how her testimony will be received by the judge and appellate court.  Certainly way more aware than a lay person.  She does not want her reputation tarnished in public and she absolutely knows that if she files this last second affidavit that Hampton will likely have no choice but to not call her.

As I have been saying, Cummings could have been completely truthful about what she was willing to say at the hearing at the very beginning.  Hampton could have then proceeded with his strategy accordingly.  But she did not do that in the beginning.  She played along and offered help right up until the very day she was called to testify.  Chickenshit at best. 

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2 minutes ago, sheeeit said:

Again, you are the attorney, but in Cummings affidavit she states that she had met with Hampton at least once previously to discuss the case.  Obviously, you would met with your witnesses prior to the hearing to know what they are going to say and prepare your case.  

Of course we do not know exactly what transpired at the previous meeting but we do know that Cummings did not have an attorney present and that after the meeting, Hampton fully prepared to call her to testify based on the answers she gave.  According to Hampton, on the day of her testimony Cummings suddenly had an attorney and the affidavit Cummings wanted to introduce at the hearing was much different than what she had said in their previous meeting.  

Hampton called Cummings to testify based on what she said at the previous meeting.  Suddenly on the day of her testimony, she is changing her story.  Or, perhaps more accurately, she is adding to and enhancing her story in a way that would be harmful to Hampton's client.  Cummings is smart and is certainly aware of how her testimony will be received by the judge and appellate court.  Certainly way more aware than a lay person.  She does not want her reputation tarnished in public and she absolutely knows that if she files this last second affidavit that Hampton will likely have no choice but to not call her.

As I have been saying, Cummings could have been completely truthful about what she was willing to say at the hearing at the very beginning.  Hampton could have then proceeded with his strategy accordingly.  But she did not do that in the beginning.  She played along and offered help right up until the very day she was called to testify.  Chickenshit at best. 

So you're just spitballing here based on what Hampton says on camera. You have no idea about what she was initially planning to do or if she "changed her story." We simply do not know what she detailed in those affidavits. Wrt Cummings I am inclined to give deference to the concurring opinion in the CCA ruling than what we are presented in Outcry. 

 

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7 minutes ago, sheeeit said:

in Cummings affidavit she states that she had met with Hampton at least once previously to discuss the case. 

You seem to have much more information than what was revealed in the documentary.  Do you have some connection with the case?  I haven't seen Cummings affidavit and it is my understanding that affidavit was sealed.

 

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6 minutes ago, Jerry Callo said:

You seem to have much more information than what was revealed in the documentary.  Do you have some connection with the case?  I haven't seen Cummings affidavit and it is my understanding that affidavit was sealed.

 

It was. I have a copy of the brief she filed with the CCA. I don't expect her to meet up with Hampton for drinks anytime soon.

Quote

....Moreover, the record does show that Kelley did receive ineffective
assistance, but not from Patricia Cummings. Rather Kelley’s current writ
attorney, Keith Hampton, was ineffective in his representation of Kelley
on his motion for new trial. Yet, Hampton had Kelley sign a waiver of the
issue of Hampton’s own ineffectiveness. It is particularly disturbing that
Hampton had his client waive a good claim of ineffective assistance
against himself and, instead pursued frivolous claims of ineffectiveness
against Cummings.

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9 minutes ago, Gourmand said:

We agree that Greg Kelley is a victim here, but he was not victimized by Patricia Cummings. He was victimized by the Cedar Park police department and the Williamson County DA.

I believe he was victimized by all 3.  As to Cummings, first when she told her investigator to not investigate a possible other suspect after the investigator ALREADY found enough evidence to warrant a deeper dive.  Absolutely zero excuse for this.  Second, when she changed her approach to her testimony on the day of the actual hearing.  Absolutely no excuse for this.

 

13 minutes ago, Gourmand said:

How is that a conflict of interest? She had no demonstrable allegiance to any of them over her then-client, Greg Kelley.

You keep missing the point.  She had no conflict when the defense started.  She had no way of knowing where the evidence would lead her in her defense.  But when it did lead her to the son of the woman that referred her to the case and the brother of people she had defended in the past, then she absolutely had a conflict.  

 

18 minutes ago, Gourmand said:

She considered that argument and thought it was weaker than the argument she ultimately chose because she believed that a jury was highly likely to believe the children's identification of Greg Kelley. He was named by both children multiple times. Plus, victim one named "Greg" to his mom. That is a tough hurdle for any defense attorney to overcome. And can you not consider what the prosecution would do if she had presented Jonathan as an alternate suspect? They looked a lot alike, but they weren't twins. They were noticeably different in height and they had different voices and they had been around both boys enough that the prosecution could argue the two boys knew Greg vs Jonatha

I think this is horseshit.  Of course the prosecution could and would argue that the kids should know the difference between Greg and Jonathon.  But that actually weakens their case.  You keep ignoring (intentional?) that one of the boys named Jonathon twice in his CAC interview as the one that abused him.  Twice.  Impossible for the prosecution to argue that the victims knew the difference between the 2 teens and also argue that one of the boys got the 2 mixed up in his interview.  That is completely nonsensical.  

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34 minutes ago, Jerry Callo said:

If I thought there was a potential conflict, I would have advised the client of it and would have had the client sign a conflict waiver.

I get where you are coming from and I did not go this route to try and put you on the spot at all.  Just appreciate your insight as someone that does this for a living.

Having the client sign a waiver is obviously the prudent thing to do.  But, can you imagine any possible scenario where you would go to your client and say- my investigator on your case has come to me and has some raw evidence that possibly shows that your best friend is the one that may have committed this crime but I am forbidding him to look into that evidence any more.  As a result, I want you to absolve me from any conflict claims since I know his mother, I represented his brothers and she is the woman that referred me to you.   That just seems ludicrous.

Is there any reason whatsoever, for the attorney to prohibit her investigator from investigating another viable suspect?  Isnt that kind of defense 101?  Again, she doesn't ultimately have to use it but to not even investigate seems criminal to me.  And, with the benefit of hindsight, it would almost have certainly resulted in her client getting off.

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16 minutes ago, sheeeit said:

As to Cummings, first when she told her investigator to not investigate a possible other suspect after the investigator ALREADY found enough evidence to warrant a deeper dive.  Absolutely zero excuse for this.  Second, when she changed her approach to her testimony on the day of the actual hearing.  Absolutely no excuse for this.

You still haven't answered my questions about the physical differences between Jonathan and Greg and how a prosecutor would attack that theory. She considered that angle and determined, after interviewing Jonathan multiple times and consulting with Greg, that it was not the best strategy. "Greg put his pee pee in my mouth" and "I wish my pee pee were big like Greg" are huge hurdles to overcome. 

How do you know about her supposedly changing her testimony on the day of the hearing? Where are you getting this information?

 

20 minutes ago, sheeeit said:

You keep missing the point.  She had no conflict when the defense started.  She had no way of knowing where the evidence would lead her in her defense.  But when it did lead her to the son of the woman that referred her to the case and the brother of people she had defended in the past, then she absolutely had a conflict.  

I'm not missing any point. You are missing the point that there is a legal standard to show a conflict of interest claim and the fact that she had simply represented family members of the McCartys at various times between 2005-2007 is not evidence of an ineffective assistance claim from a conflict of interest. The clients she represented, N.D. in particular, were never suspects or investigated by Cedar Park police. She never represented Jonathan. So please explain how this meets the legal standard. 

 

25 minutes ago, sheeeit said:

I think this is horseshit.  Of course the prosecution could and would argue that the kids should know the difference between Greg and Jonathon.  But that actually weakens their case.  You keep ignoring (intentional?) that one of the boys named Jonathon twice in his CAC interview as the one that abused him.  Twice.  Impossible for the prosecution to argue that the victims knew the difference between the 2 teens and also argue that one of the boys got the 2 mixed up in his interview.  That is completely nonsensical.  

I'm not ignoring anything, I'm acknowledging the incredible weight of eyewitness testimony to a jury. I realize Jonathan was named in the CAC interview, but he wasn't named by the first victim iirc and Greg was named by both. Multiple times. Cummings thought that the "Jonathan did it" defense was a greater gamble than attacking the legitimacy of the interviews themselves and the adult investigators involved. 

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32 minutes ago, Jerry Callo said:

You seem to have much more information than what was revealed in the documentary.  Do you have some connection with the case?  I haven't seen Cummings affidavit and it is my understanding that affidavit was sealed.

35 minutes ago, Gourmand said:

So you're just spitballing here based on what Hampton says on camera. You have no idea about what she was initially planning to do or if she "changed her story." We simply do not know what she detailed in those affidavits. Wrt Cummings I am inclined to give deference to the concurring opinion in the CCA ruling than what we are presented in Outcry. 

 

I have no connection or information other than what was in the documentary and available online.

https://www.kxan.com/news/greg-kelleys-former-attorney-at-center-of-tuesdays-hearing/

This is a copy of one of Cummings' affidavits where she tells the judge she met with Hampton previously to answer these questions.  I already said that I have no way of knowing what was asked and answered between Hampton and Cummings at the first meeting but it really is impossible to conclude that Cummings gave answers that would be harmful to Greg at that prior meeting because after that meeting between Hampton and Cummings (and obviously others were present) Hampton still planned to call Cummings to testify and his team, as well as the state's team, spent hours and hours preparing to question her.  

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22 minutes ago, sheeeit said:

I already said that I have no way of knowing what was asked and answered between Hampton and Cummings at the first meeting but it really is impossible to conclude that Cummings gave answers that would be harmful to Greg at that prior meeting because after that meeting between Hampton and Cummings (and obviously others were present) Hampton still planned to call Cummings to testify and his team, as well as the state's team, spent hours and hours preparing to question her.

You have to stop there.  You can't just fill in the blanks with what you think probably happened.  It is just as likely that Hampton made the decision to avoid opening up Pandora's box by allowing Cummings to fully testify prior to seeing her affidavit.  When he filed the ineffective assistance claim he was aware of the real possibility that it would be met with opposition.  He could have decided that the facts associated with the police investigation and DA's handling of the case were sufficient or more persuasive than the full legal representation facts.

I actually don't care.  You can believe whatever you want from what you took from the documentary and what you found online.  Your speculation holds no more weight than mine.

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9 minutes ago, Gourmand said:

You still haven't answered my questions about the physical differences between Jonathan and Greg and how a prosecutor would attack that theory. She considered that angle and determined, after interviewing Jonathan multiple times and consulting with Greg, that it was not the best strategy. "Greg put his pee pee in my mouth" and "I wish my pee pee were big like Greg" are huge hurdles to overcome. 

Do you know how dumb this sounds?  She interviewed Jonathan multiple times?  I am shocked in her interview of him he did not admit to the crime.  She consulted with Greg?  Please show us where she told Greg that her investigator found evidence that Jonathan could be a suspect but she told the investigator to stop looking.  How could she even possibly consult Greg about Jonathan without even investigating Jonathon?  This is completely nonsensical.  

 

14 minutes ago, Gourmand said:

How do you know about her supposedly changing her testimony on the day of the hearing? Where are you getting this information?

See above.

15 minutes ago, Gourmand said:

I'm not missing any point. You are missing the point that there is a legal standard to show a conflict of interest claim and the fact that she had simply represented family members of the McCartys at various times between 2005-2007 is not evidence of an ineffective assistance claim from a conflict of interest. The clients she represented, N.D. in particular, were never suspects or investigated by Cedar Park police. She never represented Jonathan. So please explain how this meets the legal standard. 

Surely you realize that situations change during a case right?  Discovering a potential conflict does not always come up when you take the case.  I am sure it never even entered Cummings mind that during the course of the defense that the son of the woman that referred her to the case would emerge as a possible suspect.  

What I am saying is that when Cumming's investigator said they needed to look hard at Jonathan as a suspect based on evidence the investigator found, that Cummings was derelict for stopping him from looking into it.  I am further stating that whether or not Cummings stopped the investigation into Jonathon as a result of her relationship with the McCarty family, doesn't matter.  I am saying it is a reasonable legal assumption to present to the court.  None of us get to be inside Cumming's mind.  But that is why conflicts are in place.  Cummings does not get to decide if she was conflicted or not, the court does.  

What I am saying is that if my son were on trial for child molestation and his lawyer's investigator said there was sufficient evidence to look into someone else for the actual crime, then I would fire that attorney immediately if she forbid the investigator from proceeding.

You keep saying Cummings thought the other strategy was the best one.  How the hell would she  know?  She forbid her investigator from looking into it.  What if they got Jonathon's phone and found pictures of his penis in the kid's mouth?  Do you think the defense strategy might change?  What if they found links to child porn on Jonathon's phone or computer?  You think that might change the strategy?  Again, I am not talking about a fishing expedition or some slander campaign against an innocent person.  I am saying investigate a known lead fully for the benefit of the client.  We aren't talking lots of money and time here.  Cummings own investigator said he was fully prepared to subpoena Jonathon's phone and computer and do what investigators are supposed to do and that Cummings told him to stop.  Inexcusable.

38 minutes ago, Gourmand said:

Cummings thought that the "Jonathan did it" defense was a greater gamble than attacking the legitimacy of the interviews themselves and the adult investigators involved.

This is the whole point.  She could not possibly make that determination without doing an actual investigation of Jonathon.

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17 minutes ago, Jerry Callo said:

You have to stop there.  You can't just fill in the blanks with what you think probably happened.  It is just as likely that Hampton made the decision to avoid opening up Pandora's box by allowing Cummings to fully testify prior to seeing her affidavit.  When he filed the ineffective assistance claim he was aware of the real possibility that it would be met with opposition.  He could have decided that the facts associated with the police investigation and DA's handling of the case were sufficient or more persuasive than the full legal representation facts.

I actually don't care.  You can believe whatever you want from what you took from the documentary and what you found online.  Your speculation holds no more weight than mine.

Well if my speculation was based on additional/more information than what your speculation was based on (you apparently did not know Cummings went over her testimony with Hampton prior to the hearing) then I actually think my speculation would hold more weight than yours.  Just as your's would potentially hold more weight than mine if you had information that I did not have.

You know about these types of hearings.  A guy is in prison and he gets this one shot.  No continuations.  No second bite.  No new information after this.  This is it.  Put yourself in this situation.  You have worked for years on this particular case.  You have interviewed a very, very key witness for your case and, based on that interview, have formulated your strategy.  Then on the day that witness is supposed to testify, they change their story and decide to include things that they never brought up before and that are going to be detrimental to your client.  And this is not some jail house snitch or someone not totally aware of the ramifications of their actions.  You would rightly be extremely angry and would consider that witness a chickenshit piece of shit.

Do you think it is even remotely reasonable/likely for Hampton to have based a large part of his defense strategy on Cumming's testimony if her testimony to him would have been hurtful to his client when they prepared it?  Hampton would have to be one stupid lawyer to do that.  

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This is the whole point.  She could not possibly make that determination without doing an actual investigation of Jonathon.
I'm not going to bother responding in depth because you haven't read the concurrence and I'm not going to waste more time reading it for you, but I'll just say that this is textbook hindsight Monday morning quarterbacking of a legal defense and not sufficient proof of ineffective counsel.

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I'm not going to bother responding in depth because you haven't read the concurrence and I'm not going to waste more time reading it for you, but I'll just say that this is textbook hindsight Monday morning quarterbacking of a legal defense and not sufficient proof of ineffective counsel.

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I don't think it was ineffective assistance of counsel, which as I mentioned above has a really high bar.

But I am of the opinion that there was sufficient smoke to have to withdraw. I think that there are some things in Rule 1.6, especially the comments, that would lead to withdrawal.


https://www.legalethicstexas.com/Ethics-Resources/Rules/Texas-Disciplinary-Rules-of-Professional-Conduct/I--CLIENT-LAWYER-RELATIONSHIP/1-06-Conflict-of-Interest--General-Rule


And I also admittedly hold criminal law attorneys (defense and prosecution equally) to pretty high standards when it comes to avoiding even the appearance of conflict.
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12 minutes ago, APMP said:

I don't think it was ineffective assistance of counsel, which as I mentioned above has a really high bar.

But I am of the opinion that there was sufficient smoke to have to withdraw. I think that there are some things in Rule 1.6, especially the comments, that would lead to withdrawal.


https://www.legalethicstexas.com/Ethics-Resources/Rules/Texas-Disciplinary-Rules-of-Professional-Conduct/I--CLIENT-LAWYER-RELATIONSHIP/1-06-Conflict-of-Interest--General-Rule


And I also admittedly hold criminal law attorneys (defense and prosecution equally) to pretty high standards when it comes to avoiding even the appearance of conflict.

 

That's reasonable and fair. I  am not arguing that Cummings isn't without some criticism because I think even she would have second-guessed some of her choices immediately after the guilty verdict. She did believe that she put on a strong defense attacking that investigation and that it would yield a not guilty verdict. I just reserve my ire for an incomplete and shoddy investigation by Det Dailey and the Williamson County DA's office.  

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That's reasonable and fair. I  am not arguing that Cummings isn't without some criticism because I think even she would have second-guessed some of her choices immediately after the guilty verdict. She did believe that she put on a strong defense attacking that investigation and that it would yield a not guilty verdict. I just reserve my ire for an incomplete and shoddy investigation by Det Dailey and the Williamson County DA's office.  


Oh yeah WillCo folks are easily the most deserving of said ire.
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If she had put as much effort into his defense as she does making sure those sweater puppies are looking like they are about to make a run for it...
You know she got lawdogged on occasion post HH at Star Bar.

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Going to throw this out there since there is a question regarding the date of the alleged assault:

  • Greg moves out (April)
  • new kid joins the daycare for the summer (original date of assault is July)
  • Jonathan tells new kid "call me Greg" (Jonathan knowing he looks similar to the real Greg)
  • commits offense, kid says "Greg did it"
  • DA, CPD, Cummins, et al too fucking lazy or stupid to investigate

Just a thought. 

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No, those dates are incorrect. Greg Kelley moved out in early June and the first allegation came about a month later. The first victim had been at the home regularly on weekdays for at least a year, maybe longer I can't recall. The second victim started attending daycare there six months earlier.

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3 minutes ago, Steel Shank said:

Going to throw this out there since there is a question regarding the date of the alleged assault:

  • Greg moves out (April)
  • new kid joins the daycare for the summer (original date of assault is July)
  • Jonathan tells new kid "call me Greg" (Jonathan knowing he looks similar to the real Greg)
  • commits offense, kid says "Greg did it"
  • DA, CPD, Cummins, et al too fucking lazy or stupid to investigate

Just a thought. 

except Greg moved out in June,  the original file date of the assault was July, but ADA Puryevor recognizing that Greg wasnt living in the house then,  changes the date and picks April 15th as the date of the assault out of the fucking blue, and no one questions that new date, its almost as if Cummings didnt recognize the importance of the original claimed date of the assault vis a vis Greg's living there.  

The kid that said the name Mr  Jonathan only said that name AFTER  Cedar Park Sgt Schulz ASKED THE KID if it was Mr Greg or Mr Jonathan that whipped it out and told the kid to put lotion on it.

As the show presented, the only time  the name Jon is mentioned with the courts is because the cop brought the name up, and  whats frustating is on the stand, sgt schultz couldnt explain how he came up with the name Mr Jonathan to ask the kid.

 

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18 minutes ago, Gourmand said:

No, those dates are incorrect. Greg Kelley moved out in early June and the first allegation came about a month later. The first victim had been at the home regularly on weekdays for at least a year, maybe longer I can't recall. The second victim started attending daycare there six months earlier.

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I stand corrected. The assault occurred 5-6 weeks after GK moved out.

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1 hour ago, Steel Shank said:

Going to throw this out there since there is a question regarding the date of the alleged assault:

  • Greg moves out (April)
  • new kid joins the daycare for the summer (original date of assault is July)
  • Jonathan tells new kid "call me Greg" (Jonathan knowing he looks similar to the real Greg)
  • commits offense, kid says "Greg did it"
  • DA, CPD, Cummins, et al too fucking lazy or stupid to investigate

Just a thought. 

I feel pretty good about the fact that McCarty said he was Greg. Not sure exactly how that would play out, but it wouldn’t surprise me if the kid referred to Jonathan McCarty as Greg by mistake on a few occasions considering the living situation. But there’s no doubt something happened. It’s easy for me to say this in hindsight, but there’s no way a kid makes that story up unless it happened to him. 

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I feel pretty good about the fact that McCarty said he was Greg. Not sure exactly how that would play out, but it wouldn’t surprise me if the kid referred to Jonathan McCarty as Greg by mistake on a few occasions considering the living situation. But there’s no doubt something happened. It’s easy for me to say this in hindsight, but there’s no way a kid makes that story up unless it happened to him. 
I'm inclined to agree with you that it happened and it was Jonathan McCarty who did it, but that research video of the unintended consequences of suggestive interviewing of children was very persuasive. I remember those cases in the 80s and 90s. Crazy details.

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Mannix and dep fife/dailey conducted a cringe worthy less than half assed investigation thst cost a kid his life- every functional adult

It was a proper and thorough investigation!- mannix/fife

Cummings put on a shitty defense everyone can see- every functional adult

Cummings put on a sound conflict free defense and it was not ineffective counsel!!- gourmand

You know I thought gourmand may be mr cummings but at this point maybe its Patricia herself

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3 minutes ago, williemackgarza said:

Mannix and dep fife/dailey conducted a cringe worthy less than half assed investigation thst cost a kid his life- every functional adult

It was a proper and thorough investigation!- mannix/fife

Cummings put on a shitty defense everyone can see- every functional adult

Cummings put on a sound conflict free defense and it was not ineffective counsel!!- gourmand

You know I thought gourmand may be mr cummings but at this point maybe its Patricia herself

And if it’s anyone else other than Greg Kelley, like just a regular ass dude walking the halls of Leander and maybe you don’t have as stellar a reputation...you’re definitely doing 25 with no parole. It’s fucking scary to think about, because you know there are Greg Kelley’s in jail right now that just didn’t have the support that Kelley had. 

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