Kellers Granted Relief

Fran Keller (center) with her children, Donna and Steve (Photo by Jana Birchum)

Last Wednesday's news that the Texas Court of Criminal Appeals would unanimously grant relief – yet deny a ruling of actual innocence – to former child care providers Frances and Dan Keller in their 1992 sentencing to 48 years in prison for sexual assault of a minor came in the utmost of concise messaging: five paragraphs that laid out for the Kellers the law as it applies to their conviction. No assessments, reactions, or interpretation.

Its barrenness bothered Keith Hampton, the Kellers' pro-bono attorney. He'd hoped for more than just a ruling: a bit of insight into why the judges who sit on the CCA collectively decided to only grant relief to the pair on the basis of false testimony (that being the one provided by Dr. Michael Mouw, the then-novice examiner who testified at trial that he observed physical indications of sexual abuse on the child's vagina that, he later learned, were more normal than he once believed). Making those matters more disturbing for Hampton is that one personal opinion did come down from the nine judges: a concurrent opinion issued by Judge Cheryl Johnson that called the case "a witch hunt."

Indeed, Johnson contended that she would have "grant[ed] relief on all the grounds that have been raised," noting in detail just how many fabrications had taken root (and were subsequently believed by the jury) in the "testimony of a three-year-old child, who, even before she sporadically attended the [Kellers'] day-care facility, was in therapy for numerous psychological and behavioral issues." She references the bogus allegations of blood-laced Kool-Aid, magical plane trips, and battles with gorillas in Zilker Park, before making conclusions. "It was not just Dr. Mouw who was too quick to believe," she wrote. "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."

Dan Keller (Photo by Jana Birchum)

Which leaves Hampton wondering: If Johnson wanted to grant relief on all the grounds raised by the Kellers, and yet faced enough dissent along the CCA's bench that she wasn't able to sway her cohorts, what exactly was the nature of that dissent?

Hampton said last Thursday that he spent the full 24 hours after receiving the opinions thinking about that question. The night before, he began drafting a motion for reconsideration he plans to file with the CCA this week, in hopes that another pass through their court will reap more than just a ruling on last week's denial of actual innocence. "The court is even [more difficult to interpret] than the black box of a jury," said Hampton. "You can talk to a jury afterward. Most of them will tell you why: where you won the case or lost it. Judges of the court: That is sealed and you don't get anything." Hampton felt confident he would be making oral arguments before nine judges because the case "is filled with very juicy stuff I believe no judge would be able to resist writing about. Yesterday, when I got the two opinions, they're identical and about a page-and-a-half. You wouldn't know from them what the case is about." He's hoping to get better intel from the CCA should the case be re-considered.

Should it not, Hampton won't be left bereft of options. He's considering filing for a hearing in federal court, where he looks forward to the prospect of appearing before U.S. District Judge Sam Sparks or Lee Yeakel, two judges Hampton believes may approach the case with a more objective viewpoint than their county counterparts. And he still expects that the Kellers' innocence will be determined within Travis County – either through District Attorney Rosemary Lehmberg's (or her successor's) dismissal of the charges, or a verdict reached through another trial. To the latter, Hampton doesn't think prosecutors would stand much of a chance. "If you take away Dr. Mouw's testimony and look at what [physical evidence] you have left ... you don't have anything left," he said. (The Travis County DA's office told the States­man it plans to wait until Hampton's subsequent filings before deciding how to best proceed.)

Either way, said Hampton, granting the Kellers innocence is about more than their own personal future. It could speak volumes to how the country's judicial system looks at situations like this in the future.

"This case is Texas' McMartin case," he said, referencing Virginia McMartin's controversial Los Angeles-area day care sex-abuse case of the late Eighties that hinged a little too much around the tenets (and unjustified fear) of satanic ritual abuse. "It's a case of people caught up in a hysteria. This is a case of panic. We've had panics in human history throughout. We'll have other panics in the future. The reason we have judicial opinions, and why we write and publish opinions, is so that we learn from history and inform future judges and lawyers and law enforcement. This is a case that you need to write on."

As Judge Johnson wrote, we'll never learn from our mistakes unless we take the time to give them fair and proper consideration.