1992 sex case over day care tossed
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.