A rape case in Ashley County Circuit Court ended in mistrial Thursday after the judge said a crying child could sway the jury.

Kevin Kelley, 28, of Ashley County, was charged with second-degree sexual assault earlier this year.

According to the Ashley County Clerk’s records, Kelley went for a first appearance on Jan. 18 and at that time his bond was set at $40,000. Kelley bonded out in June and on Friday went before Judge Bynum Gibson and a jury for a trial.

The alleged victim was a seven-year old child, and when the child was put on the stand for testimony, they were inconsolable.

“When they brought (the child) to the court room, (they) opened the door and the first face (they) saw was (their) abuser,” the child’s mother said after the hearing.

Judge Bynum Gibson said that he could not let the trial proceed because the child had been visibly upset and their emotional state would sway the jury.

“(The child) panicked, (they) showed a normal, common reaction as a child,” the mother said.

The judge told the family that because the child brought a teddy bear to the stand it “highlighted (their) infancy,” though the mother said she was told to bring something comforting for the child while they were on the stand.

The judge told the victim’s family that the incident gave the defendant no chance at a fair jury trial and declared a mistrial stating that the trial would be reset at a later time with a different jury.

“I can’t make my (child) do this again, I can’t make (the child) face him,” the mother said.

The mother said that she has concerns about even proceeding further because of the way she was treated in court and that she feels as though she shouldn’t put her child through anything else.

The mother said that the judge wanted the child evaluated by Children’s Hospital and that he mentioned the possibly of a video testimony if the therapist decides (the child) is unable to testify in person.

“The Ashley County justice system failed my (child),” she said. “The trial proved that the system is so flawed, and that is why so many women and children never come forward and so many abusers get away with no consequence.”

The new trial date had not been set at press time.

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