A visiting judge ruled Tuesday that a defense expert does not have to return any of the $102,000 paid to him through the county for his services in the capital murder trial of Rickey Cummings.
Michael O’Kelly, known as “Cell Tower Mike,” was ordered by 19th State District Court Judge Ralph Strother to attend a show-cause hearing to justify why he should not reimburse all or part of the $102,994 that O’Kelly was paid to analyze cellphone and cell tower data in the case.
His findings, if any, never were used as evidence in trial and O’Kelly never was called to testify.
The expenses were approved by Strother, who later recused himself from the hearing.
In his ruling, visiting retired Judge Rick Morris, of Bell County, noted that the expenses paid to O’Kelly already had been approved by Strother.
Morris also acknowledged concerns that requiring O’Kelly to testify and explain the expenses potentially could violate attorney-client privilege in the Cummings case and jeopardize the appeals process.
Cummings, who was returned to McLennan County from state prison for the proceeding, did not waive attorney-client privilege so O’Kelly could testify in the hearing.
O’Kelly, as a defense expert, is afforded the same privileges as an attorney in respect to divulging information about his client without his permission.
Steven R. Miears, who represented O’Kelly, said he and his client were pleased with the ruling, but declined further comment.
Meanwhile, Russell Hunt Sr., who was part of Cummings original defense team, described the show-cause hearing and attempt to recoup the payment as “interesting.”
“I’ve never seen one of those hearings before and I don’t know anyone who has,” he said.
O’Kelly was hired by Cummings’ court-appointed attorneys because it was thought his research could play a critical role in Cummings’ trial.
In November, Cummings was convicted of capital murder in the March 2011 shooting deaths of 20-year-old Keenan Hubert and 17-year-old Tyus Sneed in the parking lot of a Waco apartment complex.
O’Kelly billed the county at a rate of $245 an hour for 341 hours, plus meals, mileage and hotel bills.
Hunt described the total amount as “substantially more than defense team and judge thought.”
Hunt declined comment when asked whether he would hire O’Kelly if he could do it all over again.
Strother also declined comment on the case Tuesday. Strother, who at one point said he felt “the county has been shafted,” told the Tribune-Herald in December that he would “look much closer at anything like this in the future.”
A motion of recusal filed by Miears, meanwhile, stated that the “attorneys for the defendant chose not to call (O’Kelly) as a witness at trial, although (O’Kelly) was at all times ready, willing and able to testify if requested.”
Brad Levenson, an attorney with the state’s Office of Criminal Writs who represented Cummings in the hearing, and officials with the McLennan County District Attorney’s Office also declined comment on the hearing.