This situation is a prime example of why it is NEVER a good idea to represent yourself if you are accused of a crime.
Tommy Joe Kelley
Seventeen long years after the legendary Hyde Park tire slasher first began wreaking his peculiar brand of havoc in Central Austin, it took less than half an hour for a Travis County jury to decide last Wednesday, Nov. 9, that behind the madness was Tommy Joe Kelley, a 56-year-old homeless man with a rap sheet the length of a Russian novel. For citizens of Hyde Park, it was the end of a long neighborhood nightmare that included hundreds of instances of tire-directed criminal mischief, resulting in tens of thousands of dollars in damage and an unquantifiable amount of irritation and angst. For Kelley, it was the beginning of a new private nightmare: 10 years in prison, with the very real possibility that more court cases, and more years, could be on the way.
Kelley’s two-day trial – held last week in Judge Julie Kocurek‘s 390th Criminal District Court – was, if nothing else, proof of the old saw that a man who defends himself has a fool for a client. Deemed competent to stand trial by a court-appointed psychiatrist following his February arrest, Kelley opted to defend himself, a decision that resulted in several key legal missteps that any first-year trial lawyer might have readily avoided. Kelley’s inexperience turned what should have been a straightforward, winnable case dealing with one count of unlawful use of a criminal instrument and circumstantial evidence (Kelley was spotted by a police officer sharpening a thin, long piece of metal on the ground into a fine point on Dec. 31, 2010) into a sprawling saga about an angry man with a long criminal record and a history of drunken violence, the neighbors he tormented, the police officers he battled nearly every day of his life, and – most damning of all – the Homeric, near-mythic collection of automobile-directed crimes he allegedly perpetrated over the course of almost two decades.
It didn’t have to be that way. At the close of the first day, prosecutors Jason English and Rob Drummond had failed to convince Kocurek to allow the testimony of the case’s lead detective, Eric Hoduski, and Hyde Park Neighborhood Association Tire Slasher Task Force leader Heather Freeman (testimony the prosecutors said would introduce Kelley’s history of tire assaults, establish a pattern of criminal behavior identical to that of the slasher, and show an uptick in incidents when Kelley was out of jail) on the grounds that it would be speculative, “extremely prejudicial,” and based on hearsay. With that decision, it looked like Kelley had a real chance – that the county’s case was too circumstantial to convince a jury of criminal intent. Things looked so bad for the district attorney’s case, in fact, that Freeman (who had methodically amassed evidence against Kelley for months) admitted to this reporter outside the courtroom, “We’re losing.”
But on the second day, Kelley began presenting his case, and almost immediately the wheels came off. He called several police officers to the stand whose testimony opened the door for the prosecution to talk about his criminal record, his long and hostile history with the Austin Police Department, and the whole legend of the Hyde Park tire slasher, a story that otherwise would have remained unknown to the jury. Then Kelley let HPNA President* Lisa Harris explain to the jury how slashing incidents waned during periods when Kelley was in jail and jumped again when he was free. You could almost feel the noose tightening in the courtroom.
Finally, waiving his constitutional right not to incriminate himself, Kelley withered under cross-examination by English, admitting to having slashed tires in the past, to holding a grudge against APD and the people of Hyde Park, and even to lying on the stand under oath. From there, all the prosecution had to do was take what Kelley had given them and tie it all into a single narrative, stacking up circumstantial evidence until it added up to proof beyond a reasonable doubt that Kelley wasn’t just a persecuted homeless man with a homemade knife, but the one and only tire slasher.
Drummond persuaded the jury to sentence Kelley to 10 years by saying the defendant had “violated the community and the people he lived among. … He tears at the fabric of this community.” That may have been Kelley’s crime on the streets of Hyde Park, but his sin in the courtroom was summed up best by something Drummond said earlier to a colleague, while the jury was deliberating: “Cross-examinations are usually more suicidal than homicidal.”
Pending any prosecution on the related charges, Kelley has 10 years to think about what might have been.
*Due to an editing error, this passage originally identified HPNA President Lisa Harris incorrectly.