At about 10 a.m., Judge Rossie D. Alston informed the court that one of the jurors had been taken to the emergency room of Prince William Hospital with a suspected blood clot on her lung. It is unknown when she will be able to resume her jury duties.
The jury considered testimony from 11 defense witnesses and five prosecution witnesses for about two hours Wednesday. Defense witnesses described Kelly as a caring, involved father, and 21-month-old Frances Kelly’s death as a tragic accident. Prosecution witnesses described multiple instances in which young Kelly children were left unattended in the neighborhood. They suggested Kelly blamed his older children for such inattention. Prosecutors claimed Kelly’s irresponsibility toward his 13 children was an accident waiting to happen.
“I’m responsible for all my children. I take full responsibility,” Kelly testified Wednesday. “When Frances died, my heart was ripped out.”
Frances died after she was left in the family van for seven hours May 29. Manassas police estimate temperatures inside the van reached 120 degrees. The toddler succumbed to hyperthermia.
Jurors sent two questions to the court before requesting to retire Wednesday evening at about 6 p.m. Alston answered jurors’ questions regarding the difference between prison and jail. In response to an earlier question, Alston told the jury they were responsible for recommending a specific fine and/or incarceration time for Kelly’s sentence.
Kelly faces a maximum 15 years imprisonment. Alston can either accept or lower the jury’s recommendation, but he cannot exceed it.
After defense attorneys Carroll A. Weimer Jr. and William C. Boyce Jr. refused the option of continuing deliberations Thursday with the 11 remaining jurors, Alston scheduled deliberations to resume Dec. 4.
“We’re willing to go forward with 11,” Commonwealth’s Attorney Paul B. Ebert said, adding that since the defense was not willing to go forward, “there’s no other option but to continue to a date to see the status of the juror.”
Alston also announced the court’s intention to bring in a second jury Dec. 4 so sentencing can continue whether the ill juror is able to resume her duties or not. In the event that a new jury must be used, the entire sentencing phase of the trial will have to be repeated.
Under such circumstances, Kelly would not be tried again; the conviction stands. Only sentencing would be repeated. In light of the verdict, Ebert asked Alston to revoke Kelly’s bond.
“We would ask the court to follow the general practice to revoke the bond of convicted [defendants],” Ebert said.
“It’s not unusual for the court to continue to allow bond for a convicted [defendant] without a final order,” Weimer argued. “He is certainly not a flight risk. His children are in school here … he has significant ties to the community. His job is here. He has a number of people that will keep him here.”
“We say that about every defendant,” argued Ebert. “We now have a situation entirely different. This case is no different than any other.”
Alston continued Kelly’s bond, but on certain conditions. Kelly, who has family in Ireland, must turn in his passport. He must also make daily contact with the local probation office, and cannot travel outside the Washington metropolitan area. Alston defined that area as “as far north as Baltimore, as far south as Richmond, as far west as Winchester and as far east as Virginia Beach.”
Alston’s ruling will leave Kelly home for Thanksgiving, when defense witness John Blewitt testified Wednesday it is “a tradition in the Kelly clan to have a pickup football game” with friends and extended family.
In the meantime, Alston admonished the jury not to discuss the case with relatives, watch television news or read newspapers.
“These are extraordinary circumstances, and I appreciate I’m asking you extraordinary things,” Alston said.
Weimer intimated he may ask for a mistrial.