Jury ponders Kelly’s fate

The jury considering Kevin Christopher Kelly’s responsibility in his 21-month-old daughter’s death was still deliberating when the court closed shortly after 6 p.m. Tuesday night. It will resume deliberations today at 9:30 a.m.

The prosecution rested about 3:30 p.m. Tuesday, maintaining the evidence would show Kelly, 46, of 9727 Zimbro Ave., should be held responsible for Frances Kelly’s death after being left in a warm van for seven hours May 29.

“You’ve heard a lot of evidence, you’ve seen a lot of terrible photographs … [Kelly] didn’t choke that child … but he might as well have,” Commonwealth’s Attorney Paul B. Ebert said in closing arguments. “An omission can be just as damning [as an act.]”

Ebert was referring to the description of involuntary manslaughter in the indictment of Kelly. Kelly was also charged with reckless endangerment.

Defense attorney Carroll A. Weimer Jr. argued that Frances’ death was “a tragic accident.” Today the defense rested without calling any witnesses, though Weimer and co-counsel William C. Boyce Jr. cross-examined several of the prosecution’s witnesses.

“There is no evidence that Mr. Kelly was the one who left the child in the van,” Weimer said in closing arguments. “A jury is the voice of the community. Tell the government that Mr. Kelly should not be prosecuted for this tragic accident.”

Judge Rossie D. Alston Jr. denied an earlier request from Weimer and Boyce to dismiss the charges against Kelly. Weimer and Boyce argued the prosecution had presented no evidence other than what both sides agreed upon: Frances Kelly had died of hyperthermia.

The Commonwealth brought eight witnesses Tuesday, including three medical doctors. Neighbors Erin and Amber Beecher testified that on three separate occasions during the past three summers they had seen a young Kelly child left in a car seat in the family van. On each occasion, one of the sisters went to inform Mr. Kelly, who thanked them and removed the child from the car, the Beechers said.

“[Those] children were literally strapped in their death chambers — they got out, [but] Frances didn’t,” Assistant Commonwealth’s Attorney Sandra Sylvester said in closing argument. “We proved she was in the car seat for seven hours, we proved he blamed the other children, victimizing them as he victimized her.”

The defense argued that Kelly had acted “as a good father should” when immediately acting to remove children left in vans. Weimer also noted that Kelly had left the younger children in the care of the older children, particularly 17-year-old Anthony Kelly, when he left the home in another car to pick up lunch and another daughter.

Medical examiners Dr. John Cary and Dr. Frances P. Field gave testimony explaining their determination of the cause of Frances’ death as hyperthermia. Dr. Robin Foster, certified by the court as a medical expert in areas of pediatric medicine and child neglect, testified to the physical needs of a 21-month-old child within a seven hour period. Foster also described the reaction of such a child to being enclosed in a warm space such as a car.

“We know from Dr. Foster [toddlers] need constant attention. [During the seven hours] she would have needed fluid … diaper changes, at least two meals … someone to check on her throughout the course of the day,” Sylvester said in closing arguments. “I suggest he had an obligation to find her [during the seven hours] This was no accident. An accident is something that cannot be prevented.”

“There are accidents every day that could have been prevented,” said Weimer in closing arguments. “Should Kevin Kelly have asked questions? Sure. He’d be the first to concede that.”

After questioning Dr. Field, Ebert asked to admit photographs from the autopsy into evidence. When Weimer asked to review them first, Ebert dropped them face-up on the table between Weimer and Kelly. Weimer quickly flipped them over before reviewing them himself. Some of the photos were entered into evidence over defense objections.

Debate between the attorneys was heated, with the defense claiming the prosecution was “inflaming the emotions of the jury” through needlessly playing a tape of the 911 phone call and repeatedly showing photographs of Frances’ body. The prosecution called part of the defense argument “ludicrous.”

“It’s a matter of it not being necessary for you to look at that … Why would that Commonwealth continue to harp on that? To play on your emotions,” Weimer argued. “It wasn’t bad enough you had to look at photos of little Frances — the Commonwealth had to introduce autopsy photos!”

“The pictures are evidence,” Ebert said, “This child went through a period of hell … [The jury] must decide this case on facts. Emotions have nothing to do with this case. Facts are this child didn’t have to die. Facts are this man had notice.”

Jury deliberations will continue today. Should the jury find Kelly guilty of involuntary manslaughter and reckless endangerment, they may proceed with the sentencing phase of the trial. He faces a maximum sentence of 15 years in prison if convicted.

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