Why Is He Free?: Convicted Rapist Evades Prison For 13 Years
By Jack Sullivan
Originally published in The Boston Herald, July 27, 2001
A 72-year-old convicted rapist has avoided prison for 13 years by claiming he's too sick and weak to serve his time, but the Herald and others have observed James J. Kelly driving, doing household chores and smoking cigarettes without any apparent problems.
"It's making me sick," said Debra Hagen, who was brutally raped by Kelly—her uncle through marriage and her father's best man—in 1985 but has been stymied in her attempts to get Worcester District Attorney John J. Conte to force her attacker to serve even one day of his two 10-year sentences.
"He wasn't sick when he raped me and he was only 56 then," said Hagen, now 43 and living in Florida. "It's frustrating. This whole thing is frustrating. He gets to grow old and be free and I still have to live with it."
One member of the jury who voted to convict Kelly in 1987 of two counts of rape and one count of indecent assault and battery was stunned this week when a reporter told her Kelly was still on the streets—and likely to never go to prison.
"I thought he would go to jail, at least 8 to 10 years," said Christine Carmody of Oxford, then a 21-year-old student. "I thought he really raped that girl. That's disturbing. It's upsetting to think he could commit a violent crime and get away with it.
"He did it once," said the mother of two, "what would stop him from doing it again?"
Since Oct. 8, 1987, when Kelly was convicted of raping Hagen in the cemetery near his parents' graves after claiming he had a gun, the former plastics company owner has been allowed to remain free mostly because of his claims to be in failing health.
Just before he was to be sentenced, Kelly clutched his heart and was whisked away in an ambulance. But instead of a cardiac unit, Kelly was treated at the psychiatric unit of the former Worcester Memorial Hostpial for "major depressive disorder."
"It is my opinion that both his emotional and physical health would be seriously endangered if he were to be put through the stress of this (sentencing) at this time," Dr. Judith Eaton wrote to then-Superior Court Judge Herbert F. Travers Jr. on Oct. 14, 1987.
Travers, who did not return calls for comment, granted the continuance until April 1988, when he then sentenced Kelly to two 10-year and one five-year prison terms at MCI-Concord. He then stayed the sentence because of alleged health problems and an appeal. Kelly has been free on personal recognizance ever since.
Neither Kelly nor his attorney returned calls for comment. Through a spokeswoman, Conte declined comment, saying it was a "pending matter."
It is unclear why Conte's office never sought to enforce Travers' sentence until 13 years after it was handed down. In fact, Conte and Joseph J. Reilly III, his assistant who prosecuted the case, never challenged the defense motions for the stays.
Last month, when Conte's office finally filed a motion to revoke Kelly's stay, Kelly was brought into the courtroom in a wheelchair, claiming to have had a recent hip operation. His physical appearance prompted Superior Court Judge Daniel Toomey to allow Kelly to remain free.
"Defendant's health has now deteriorated to the degree that incarceration, while appropriate for the offense for which he was convicted, may constitute untoward vindictiveness," Toomey wrote in his decision last month.
But two weeks after he was wheeled in for his latest court appearance, a Herald reporter and photographer witnessed Kelly carrying several large green bags of trash out to the curb at his luxury townhouse. Kelly had a crutch under his right arm that he discarded when he tossed the bags into a barrel.
Later, Kelly emerged from his well-kept home, this time with the crutch under his left arm. After dropping the crutch, Kelly got down on his hands and knees and began weeding his yard. He was also seen working in a cubby hole at the base of a wall in his garage with no crutch or support in sight.
A walker sits outside Kelly's townhouse but he was seen using it just once when he walked toward a car with a Herald photographer. On another day, the walker was outside the open front door and Kelly could be seen walking around inside without any support.
Kelly also claims to have a bad heart that required bypass surgery just after his conviction. But Toomey and Travers, who is now retired, seemed more concerned about Kelly's cardiac problems than he does. According to those who know Kelly, he is a heavy smoker and was photographed by the Herald smoking cigarettes each time he came out.
But the Herald is not the only witness to Kelly's apparent good health. Wendy J. Murphy, Hagen's attorney, filed an appeal this week with the state Supreme Judicial Court in an attempt to force Kelly to serve time, citing Ayer police Detective Mark Bonner, who has had several encounters with Kelly.
Bonner, who could not be reached for comment, is quoted as saying Kelly appeared "fine," and was walking, smoking and driving as recently as March 26 with no ill effects.
Murphy said even if Kelly has experienced some illnesses, that should not stop Conte from putting him behind bars.
"People with much more serious health problems are in prison," Murphy said. "You can lay infirmed in prison."
Kelly's voluminous file at Worcester Superior Court Clerk's office shows no efforts by Conte or his prosecutors to confirm Kelly's alleged maladies.
Numerous doctors, psychiatrists and high-powered officials, including state Sen. Robert Antonioni (D-Leominster), who was chairman of the Criminal Justice Committee and remains a member, have written letters to the judge on Kelly's behalf.
"When I wrote the letter I was just asking they consider my experience with him," the senator said.
Antonioni said one of the things that prompted him to write the letter was "a question about (Kelly's) guilt or innocence" in the motions filed by Kelly's lawyers, but he conceded a prison term is appropriate for a rape conviction.
Antonioni, who went to grade school with the victim, said, "If he did what he's convicted of, my expectation is he will get some jail time."
But Carmody said jurors had no questions at all about guilt.
Carmody said jurors were convinced both by Hagen's tearful testimony and pictures of her taken at the hospital the night of the rape with bruises on her neck.
"We didn't deliberate very long, maybe three or four hours," she said. "We were sure from the evidence they had presented that he had done it."
Hagen and Murphy said officials from Conte's office have tried to coerce Hagen into accepting probation for Kelly without explanation. Murphy charged that Assistant District Attorney Kathleen M. Dellostritto made a veiled threat that Hagen might be arrested and jailed for an 11-year-old civil default warrant for an unpaid $100 credit card debt if she came to Massachusetts for the hearing last month.
Hagen, who had never been served with the warrant because she lived in Florida, came anyway, but Murphy questioned what prompted Conte's office to search for the dormant warrant.
Hagen, who with her second husband owns a restaurant in Bradenton, Fla., said Reilly has tried several times to get her to agree to probation, telling her if she didn't, Kelly would get a new trial anyway and she would be forced to come and testify again.
Hagen wrote at least two victim impact statements to be filed by prosecutors opposing the probation, but the letters were never put in the case file by Conte's office.
Hagen said she has no doubt Conte is capable of putting people behind bars. Hagen said she went into a deep depression after the rape and began using drugs to cope, mainly cocaine. In 1988, she was arrested for possessing a small amount of cocaine and she pleaded guilty—mostly, she said, because her arraignment and trial were in the same courtroom and the feelings were overwhelming.
Hagen, who no longer uses drugs, received a three-month sentence.
"They had no problem putting me in jail," she said.
