A Manassas father of 13, who was convicted of involuntary manslaughter and child neglect after leaving his toddler daughter in a hot van, will have to wait at least two weeks to hear a jury's sentence because one of the jurors was hospitalized yesterday.
The unusual delay will allow Kevin C. Kelly, 46, to spend the Thanksgiving holiday with his family. Had jurors recommended a sentence yesterday, it was possible that Kelly would have been placed in custody. Kelly could receive as much as 15 years in prison or as little as no jail time at all.
Kelly has been free on a personal recognizance bond since he was charged in the May 29 death of his youngest child, 21-month-old Frances. She was stranded in her car seat in the family's van for seven hours while other family members took care of chores.
After the guilty verdicts were read Wednesday, Kelly told jurors he accepted responsibility for Frances's death.
The jury deliberated on a sentence recommendation for about two hours Wednesday evening, mulling over conflicting evidence that Kelly was either a loving and dedicated father or a man who was increasingly neglectful of his children. Frances's death followed a series of incidents in which his young children were lost, left unattended or placed in danger, according to testimony. In at least three instances, witnesses said, young children were left strapped in the van on hot days.
Defense witnesses, including Kelly's wife, testified that Kelly was a good and caring father.
Deliberations were supposed to begin again yesterday morning, but only 11 of 12 jurors appeared in the courthouse. Officials later learned that a juror was being treated at Prince William Hospital for a blood clot on her lung and may need surgery.
Kelly's defense team objected to continuing with 11 jurors, so Judge Rossie D. Alston Jr. ordered the jury to return Dec. 4 to continue deliberations.
It's unclear what would happen if the juror was not fit to return that day. Alston said a new jury pool would be available for a new sentencing panel if needed. In that case, prosecutors and Kelly's attorneys would again have to present their sentencing evidence, which included almost a dozen witnesses over several hours. The new jurors would not have had the opportunity to hear trial evidence.
The two alternate jurors were dismissed after closing arguments and missed deliberations in the guilt and sentencing phases of the trial.
Carroll A. Weimer Jr., Kelly's lead attorney, said: "He's entitled to have the 12 people that deliberated in the guilt phase consider the sentence. We believe in the jury system."
Weimer said Virginia law could allow for a mistrial if the jury cannot reach a unanimous verdict in the sentencing phase, but he said it is too early to say whether he would file a mistrial motion.
Commonwealth's Attorney Paul B. Ebert asked the court yesterday to revoke Kelly's bond, arguing that this case should not be treated differently from other felony convictions. In many such cases, defendants are ordered to jail while a sentence recommendation is pending.
Ebert argued that because Kelly faces up to 15 years in prison, he could be a flight risk. Weimer said that Kelly's ties to the area would keep him here.
"Not only is his immediate family in the area, but his extended family is as well," Weimer said, adding that Kelly also works for a contractor as a purchaser. Kelly is the family's sole source of income.
Alston released Kelly with several conditions: He must surrender his passport, not leave the Washington region and check in with probation officials every day.
After the hearing, Weimer said the Kellys are relieved that they will have the holiday together. "They're thankful that he'll be able to be home with them for Thanksgiving," he said.
Ebert said he would have been willing to allow the 11 remaining jurors to continue deliberations. Such a decision would not have been unprecedented.
Alston instructed jurors not to talk about any aspect of the case with anyone during their recess -- which spans the Thanksgiving holiday period -- and to avoid any media coverage of the trial.
"Be patient as we work our way through this," Alston told the jury yesterday. "These are extraordinary circumstances, and I appreciate that I'm asking you [to do] an extraordinary thing."