District Attorney Ron Brown and Circuit Court Judge Cindee Matyas will prosecute and hear the case against Thomas Kelly, who was twice convicted of sexually abusing a family member, for a third time.

Defense motions that requested Brown and Matyas be removed from the case based on concerns over fairness were denied this week by Multnomah County Senior Circuit Judge Julie Frantz.

“I was very happy to see it upheld,” Brown said.

In 2008, a jury convicted the Astoria man of 12 counts of first-degree sodomy and 12 counts of first-degree sexual abuse for ongoing abuse of the 9-year-old family member between July 2004 and May 2006. He was sentenced to more than 33 years in prison.

An Oregon Supreme Court decision in 2010 held that medical experts cannot testify about child sex abuse diagnoses if no physical evidence exists. As a result, Dr. Roy Little’s testimony, which did not contain physical evidence, was deemed invalid. The Oregon Court of Appeals overturned Kelly’s conviction in 2011 and ordered that Clatsop County Circuit Court schedule a new trial.

Kelly was retried in 2013 and was again convicted of 24 counts of sexual abuse and sodomy. The conviction on the retried case was possible due to the victim’s testimony and DNA evidence found where the abuse took place, Brown said.

The Court of Appeals upheld the conviction in 2016.

But last year, Kelly filed another appeal in Umatilla County, where he argued his lawyer should have objected to a line of questioning from Brown that enabled a witness giving inadmissible testimony.

The judge sent the case back to Clatsop County Circuit Court, and Kelly was released on bail.

The defense had argued that Brown, in a line of questioning, disregarded previous case law by asking Little whether the victim had been coached.

The Multnomah County judge assigned to hear the dispute found that while Brown eliciting the inadmissible testimony “created error,” it was not done with the intent to deny the defendant a fair trial.

The defense also argued that Brown has a “delusional” view of the state’s evidence and “lacks the ability to objectively assess the case.” These claims were also dismissed, given that the reason for the reversal of the original case was not based on ethical issues, but rather the change in the law that prohibited a sexual abuse diagnosis without physical findings.

The defense also claimed Brown showed his bias toward Kelly by using words like “evil” and “despicable” in his closing statement. Judge Frantz found his language summarized the defendant’s acts that were “strongly supported by the evidence,” and were not used because of personal prejudice or bias.

“There is nothing to indicate that the prosecuting attorney harbored any bias against the defendant as an individual, but rather that it was the defendant’s criminal acts that fueled his concerted effort to obtain a conviction,” Frantz found.

A hearing to set the new trial is expected to be scheduled sometime next month, Brown said.