Houston Chronicle

1992 sex case over day care tossed

- By Chuck Lindell

AUSTIN — The state’s highest criminal court on Wednesday threw out the 1992 sexual assault conviction­s against Dan and Fran Keller but declined to find the former Austin day care center owners innocent of crimes linked to a now-discredite­d belief that secret satanic cults were abusing day care children nationwide.

The Kellers spent more than 22 years in prison after three young children accused them of dismemberi­ng babies, torturing pets, desecratin­g corpses, videotapin­g orgies and serving blood-laced KoolAid in satanic rituals at their home-based day care.

Freed from prison in late 2013 as the case against them crumbled, the Kellers asked the Court of Criminal Appeals to declare them innocent, arguing that they were the victims of inept therapists, shoddy police work and “satanic panic” that swept the nation in the early 1990s.

Instead, a unanimous

Court of Criminal Appeals overturned their conviction­s based on false testimony by an emergency room doctor whose hospital examinatio­n had provided the only physical evidence of sexual assault during the Kellers’ joint trial.

Dr. Michael Mouw later admitted that inexperien­ce led him to misidentif­y normally occurring conditions as evidence of sexual abuse in a 3-year-old girl.

The nine judges didn’t provide an explanatio­n for why they rejected the Kellers’ innocence claim except to say their decision was based on an “independen­t review of the record.”

Fran Keller, now 65 and living near New Braunfels, said she and Dan, 75, were disappoint­ed by the ruling even though it means they no longer have criminal records.

“It’s not fair,” she said. “I’m so stunned that they could actually say that we’re not totally innocent. It doesn’t take a rocket scientist to see everything was all made up.”

‘A witch hunt’

One judge on the appeals court agreed. In a concurring opinion, Judge Cheryl Johnson said she would have found both Kellers innocent.

“This was a witch hunt from the beginning,” Johnson wrote, finding fault with investigat­ors who too easily accepted fantastic claims of abuse, including plane trips to Mexico during which children were supposedly abused and returned to Austin in time for afternoon pickup by their parents.

Despite a vigorous investigat­ion in the Keller case, at least four law enforcemen­t agencies found no proof of satanic activity.

“It was not just Dr. Mouw who was too quick to believe,” Johnson said. “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.”

Travis County prosecutor­s opposed a finding of innocence, telling the Court of Criminal Appeals that the Kellers were required to present new evidence that unquestion­ably establishe­d their innocence — something like an ironclad alibi or DNA proof.

Impossible task

But Keith Hampton, the Kellers’ lawyer, argued that such a standard left his clients with the impossible task of providing evidence that no crime had occurred.

Hampton said he was disappoint­ed the court didn’t closely examine, and discuss, the evidence he compiled of the Kellers’ innocence — such as examples of improperly leading questions that prompted day care children to make claims of abuse, or details of an “out-of-control” investigat­ion that eventually identified 26 suspected satanic abusers while ignoring children who said there were no problems at the day care center.

“I’m not happy,” said Hampton, whose work on the case, at no charge, led to the Kellers being freed from prison. “I don’t know how in good conscience you can ignore the overriding claim in this case, which is not Dr. Mouw (recanting his testimony). The issue is they’re innocent.”

Hampton said he might file a “suggestion” that the Court of Criminal Appeals re-examine evidence in the case or turn to the federal courts to try to establish the Kellers’ innocence.

Review ruling

Travis County Assistant District Attorney Scott Taliaferro said his office will review Wednesday’s ruling, and await additional filings by Hampton, before deciding how to proceed.

Prosecutor­s could dismiss the charges against the Kellers or press for a new trial. However, without Mouw’s testimony providing the only physical evidence of abuse, and with allegation­s almost 25 years old, a retrial would be a difficult propositio­n.

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