Convicted of a Crime That Never Happened: Why Won’t Texas Exonerate Fran and Dan Keller?
Jordan Smith, The Intercept, Apr 8 2016
The 1992 prosecution of Fran and Dan Keller was based on
a trifecta of credulousness, hysteria, and bad evidence. The middle-aged couple was living quietly in Austin, Texas, where they ran a small drop-in day care out of their home, when the unimaginable happened. A little girl occasionally left in the Kellers’ care made a claim of abuse at the hands of the couple. At first, the allegation was simple. The 3-year-old told her mother in the summer of 1991 that Dan Keller had spanked her. But rather quickly, in part due to repeated questioning by her mother and a therapist who had treated the girl for behavioural problems before she’d ever visited the Kellers, the allegation morphed into accusations far more lurid. By the time the Kellers were tried, three children whose parents were at least for a time all regularly communicating about the Kellers, had described a shocking panoply of sadistic abuse. A few claims:
- Dan Keller repeatedly sexually assaulted the little girl with a pen.
- Fran performed oral sex on her.
- The Kellers dug a grave in their backyard and placed the girl in it.
- They tortured and killed animals and decapitated and disembowelled a baby.
- The children had been flown to Mexico, where they were abused by military officials.
- Fran Keller cut off the finger of a gorilla in a local park.
- The Kellers gave the children blood-laced Kool-Aid.
- The couple held a gun to one little boy’s head and forced him to assault his infant sister while they videotaped the abuse.
These among other alleged acts. There was, however, no evidence to corroborate any of the claims, and scant evidence to suggest the little girl had ever suffered any sexual abuse. Indeed, what should have been a straightforward abuse investigation became something much more: an investigation into so-called satanic ritual abuse, spurred by a peculiar form of mass hysteria that spread across the country throughout the 1980s and 1990s. The most infamous of the SRA cases is the McMartin Preschool case from California, where staff at the school were accused of acts
eerily similar to those made nearly a decade later against the Kellers. The case still holds the dubious distinction of being the longest criminal trial in the nation’s history. The owner of the preschool was ultimately acquitted, and after two juries deadlocked, charges against her son were dismissed. Today, there are few true believers left who vocally insist upon this history. To many in the criminal justice system, it is now a source of embarrassment that there was ever a time when police and prosecutors were convinced that bands of Satanists had infiltrated the nation’s daycare centers in order to abuse young children. Yet in the Kellers’ case, which I investigated for the Austin Chronicle back in 2009, I was startled to hear both a veteran cop and prosecutor say they still believed in even the most absurd of the children’s allegations against the Kellers. Although they were finally freed from prison a few years ago, the Kellers have yet to be officially exonerated, even as the moral panic that led to their conviction has been thoroughly debunked. This is a devastating state of play for the couple. They spent their prime earning years in prison, and now live on the most modest of Social Security income. Fran says they have to make regular trips to the food bank to ensure they have enough to eat. Moreover, with accusations of sexual abuse still hanging over their heads, because the state has yet to dismiss the charges, they are wary of being around any children, including their own 24 great-grandchildren. To make matters worse, the ageing couple has chronic medical issues that need tending to; medical problems in part caused by abuses they suffered in prison. Behind bars, those convicted of sexual abuse of children are considered among the lowest of the low, and are regular targets of violence by other inmates and even guards, which is exactly what happened to the Kellers.
The state of Texas had just one meaningful piece of evidence against the Kellers when they went to trial in 1992: statements by a young doctor who examined the girl and said that in addition to some redness of her outer genitalia, which he said she could have caused herself, her hymen was deformed. According to the doctor, this suggested that she had indeed been sexually abused. When I contacted him in 2009, Dr Michael Mouw recanted his testimony, saying that subsequent to the trial, he discovered he was wrong about the girl’s hymen. What he thought was a deformity, he later learned was merely a normal variant condition. He also said he’d been assured by prosecutors that he was providing just one piece of physical evidence pointing to the Kellers’ guilt. He was disturbed to learn that was not true. In the wake of his statements, a local Austin criminal defense attorney, Keith Hampton, took on the Kellers’ case pro bono, winning them a hearing on the doctor’s recanted testimony. The court and the Travis County District Attorney’s Office agreed that the testimony was false and importantly had influenced the outcome of the Kellers’ trial. Ultimately, their conviction was vacated and the couple was finally released from prison in late 2013. But the Kellers’ nightmare has not ended. In affirming the lower court’s decision to scrap the conviction, Texas’s Court of Criminal Appeals sidestepped the issue of actual innocence and despite the lack of evidence that a crime ever occurred, declined to exonerate them. Only one of the nine judges took the time to lay out a case for the Kellers’ full exoneration. Judge Cheryl Johnson wrote:
This was a witch hunt from the beginning. It was not just the young doctor who was too quick to believe. If he is to be blamed for the failure to provide (the Kellers) with a fair trial, the missteps of other persons and entities need to be examined also. We do not learn from our mistakes unless and until we are required to acknowledge those mistakes.
The court’s ruling left only one meaningful avenue for the Kellers to seek exoneration: convince the elected district attorney to admit they were wrongfully convicted. After all, given the absence of evidence against them, there is no way the couple will be tried again. But so far, DA Rosemary Lehmberg has refused to act. A veteran Austin prosecutor who was head of the DA’s child abuse division at the time the Kellers were tried, Lehmberg has acknowledged that there is no evidence upon which to retry the Kellers. Yet she has said that without DNA evidence to clear the couple, she’s unable to “find a path to innocence.” In short, Lehmberg seems convinced that in order to exonerate the Kellers, she must prove a negative: find evidence in the void to demonstrate that a crime never happened. That of course is absurd and impossible, and distressing to the Kellers and their supporters. There is no physical evidence like DNA linking the alleged crime to anyone else, because there was simply no crime. But without that DNA evidence, Fran notes, “You’re just in limbo.” As with similar cases, the Kellers’ trial and conviction exposed a number of flaws in the criminal justice system. Debbie Nathan, veteran journalist and director of the National Center for Reason and Justice, wrote in an email to The Intercept:
The SRA cases were marked by several criminal justice errors that came together in
a perfect storm offalse accusations and convictions.
Nathan has done extensive research and writing on Satanic panics and through the NCRJ she now advocates for “rational treatment of the innocent and guilty” in cases where harm to children is alleged. Among the factors that created the storm Nathan describes was a dearth of research at the time to demonstrate “how easy it is for suggestive and pressured interviewing to produce false accusations of abuse from children, and even false memories,” along with a lack of medical research into “variations in children’s genitalia.” When professionals finally began to investigate that issue, Nathan explains, “They learned that many variations are perfectly normal, not signs of sexual abuse.” False confessions were also not well understood, “and in retrospect, it appears that many people accused of SRA were pressured into false confessions.” The Kellers’ situation also highlights the fragmentary way in which potential wrongful convictions are identified and considered. The fact that wrongful convictions happen is certainly now understood; the National Registry of Wrongful Convictions, a project of the University of Michigan Law School, has chronicled more than 1,760 since 1989, with a record-setting 149 exonerations in 2015 alone. Still, convicted individuals seeking to have their cases reviewed for innocence face many barriers. For starters, with limited exceptions, incarcerated people have no real right to legal counsel, making it incredibly difficult to have an innocence claim properly investigated and raised in an appropriate court. As such, the system relies heavily on a largely unaffiliated patchwork of individuals and groups to identify and vet potential wrongful convictions, from journalists to innocence projects (many with limited resources) and academia-based legal clinics, some of which do better work than others.
The newest addition to the mix is the “conviction integrity unit,” a special division in a prosecutor’s office tasked with identifying and remedying wrongful convictions. The first was created in Dallas in 2008. By the end of 2015, there were 24 units operating in 11 states and the District of Columbia. Together, the CIUs were responsible for 58 exonerations last year. The idea that the government and its resources should be involved in the effort to ferret out and remedy miscarriages of justice makes sense. But having these units reside within the very offices responsible for potentially flawed convictions can pose problems. Indeed, while some CIUs have been quite productive, others appear to operate in name only. Consider the contrast between the CIU established by Brooklyn DA Ken Thompson, which produced eight exonerations last year alone, including in six homicide cases, and the Cook County, Illinois CIU where according to the most recent annual report of the National Registry, prosecutors have fought tooth and nail against revisiting old convictions, only to later take credit for helping to “secure” exonerations in a number of cases. As of the end of 2015, half of all operating CIUs across the country had not yet been involved in any exonerations, including the unit housed within the Austin-based Travis County DA’s Office. Although this could be partly due to the fact that the unit was started only last year, three of the other five units launched last year have been involved in at least one exoneration each. Lehmberg did not respond to The Intercept’s requests for comment for this story. Whether the CIU model will actually take off in any meaningful way remains to be seen. Currently, there are just 23 units in operation out of a total of 2,300 local prosecutors’ offices across the country. One of the CIUs opened last year in New Orleans, has already folded its operations after participating in a single exoneration. And there is ample reason to be sceptical: reviewing old cases means questioning the work of colleagues and there is simply no mandate that would force prosecutors to face that fate. Notably, 47% of exonerations involve official misconduct. Indeed, prosecutors wield extraordinary, unparalleled, and unchecked power, as the National Registry’s report says:
They alone decide who to prosecute for criminal offenses, what charges to bring against them, and what punishments to seek. In practice, that power extends to convicted defendants as well. If a sitting prosecutor asks the appropriate court to vacate the judgment and dismiss the charges against a defendant … it will happen.
But this requires political will. And too often, the will is not there. As Hampton notes, convincing a prosecutor that an injustice has happened can be a tough pull. He says:
Unless you have DNA, unless you get the DA completely cornered, there are no profiles in courage out there.
Still, the number of exonerations in cases where no crime was actually committed are on the rise, so at least in some jurisdictions, individuals aren’t forever left in the kind of limbo in which the Kellers find themselves. The National Registry includes 540 exonerations in no-crime cases, including 51 exonerations in child sex abuse “hysteria” cases like that the Kellers.