The Austin Chronicle

http://www.austinchronicle.com/news/2009-03-27/759197/

Point Austin: Legitimate Public Concern

The Keller prosecution is an enduring stain on Austin's honor

By Michael King, March 27, 2009, News

Vijay talked about going to Zilker Park in the van. They got a baby gorilla. Danny took Christi into the park. Fran stayed with Vijay. Fran cut a finger off of the gorilla and drained the blood into a water can.

– From the 1992 Austin Police Department investigative report of the Fran and Danny Keller child molestation case

Jordan Smith's story in this issue, "Believing the Children," is the result of several months of her hard and detailed work – reviewing the trial documents and related materials of the 1992 Fran's Day Care prosecution, interviewing as many of the principals she could find who were willing to talk, plus doing a good deal of background research into the period and the decadelong era of "satanic ritual abuse" hysteria of which it was a part. It's one of the longest and most difficult stories we've ever attempted, and we hope readers will see why we did so. We believe it recounts a fundamental miscarriage of justice, one that condemned to ruin at least three lives and sadly affected many more, with damage that persists to this day.

Already difficult enough, Smith's tale took yet another tangent in her attempt to get access to the Austin Police Department investigative report on the Keller case. Rather than provide the public document, city attorneys requested an advisory opinion from the state attor­ney general, whose office responded that the 17-year-old material could be withheld as "private" ("highly intimate and embarrassing") and "not of legitimate concern to the public." That opinion was wrong on both the facts and the law, but the city attorneys relied on it and convinced a judge to support their discretion. Thanks to the Chronicle's attorney, Pete Kennedy of Graves Dougherty, the 3rd Court of Appeals found the arguments of the city, the A.G., and the hearing judge unpersuasive and ordered the report released. (Kennedy worked on the case essentially pro bono; when government agencies violate open records law, he gets really annoyed.)

The APD document Smith finally received serves the very legitimate public interest of confirming what a travesty the entire Keller investigation had been. Indeed, if the city had argued it didn't want to release the report because its contents are deeply "embarrassing" to the APD, the city, and Travis County prosecutors, it would have had a much stronger case.


Absurdities and Atrocities

Voltaire famously remarked that those who believe absurdities can be made to commit atrocities, and it's a maxim that certainly applies to the Keller prosecution. Although the APD report is an unedited collection of investigative notes, it documents an episode of adult and official credulity that almost defies comprehension. What began as one troubled child's complaint about an alleged "spanking" steadily grew – under the relentless questioning and magnification of parents and authorities alike – into an utterly preposterous and literally impossible plot involving groups of children, numerous adults, chain saws, shootings, graveyards, airplane trips, bones, and dead bodies (and dead bodies reconstituted). Oh, and animals – the Zilker Park gorilla story quoted above is but one representative example of the sort of tales the supposed grownups elicited from the children, who generally began by denying any abuse but soon understood what was expected of them, the more fantastic the better. Mass murder, cannibalism, bloodbaths, satanic threats and rituals, whatever you (or an inventive child) can imagine ... Fran and Danny (and a host of unrelated third parties) did it, in broad daylight, in a quiet Oak Hill neighborhood.

Accordingly, the adults then sorted the physically impossible from the theoretically possible, disregarded the former, and decided that whatever was possible and criminal certainly happened.


Making It Right

In short, the prosecution of Fran and Danny Keller was a failure of rational justice on a tragic scale, and the Kellers became the central figures in what was in fact a hysterical witch hunt where there were no witches at all. The children, of course, were not to blame. At some point, a grownup needed to stand up and say – and keep saying – this is nonsense. The Travis County Sheriff's Office's Roger Wade had a shot – but when the children began naming former sheriff's personnel, he had to recuse himself (only to become yet another named suspect in the APD report). Social worker Vivian Lewis tried her best, telling prosecutors bluntly that their case was "incredible." They simply ignored her.

As I said, the official credulity is almost incomprehensible. But investigators had a highly dubious and recanted confession and one piece of putative physical evidence – the qualified testimony of the examining doctor of the first alleged victim. They were also living in the midst of a national panic about "satanic ritual abuse" tied to day care. None of us is immune to such headlines, rumors, sexual social panics (which have hardly ended: witness Michael Hall's story of the "Mineola Swingers" case in April's Texas Monthly).

As Smith's story reports, the examining doctor has effectively retracted his testimony, and by now we should be far enough removed from the Satanic Panic to review the Keller case with a cold and honest eye. Having been horribly served by the courts and their own counsel, the Kellers have few legal avenues for redress. But by virtue of her position as head of what was then the child abuse unit, current Travis Co. District Attorney Rosemary Lehmberg was nominally in charge of the Keller prosecution, presumably signing off on decisions that she is now in a position to review and reconsider. It would certainly take a lot of courage and a willingness to admit serious mistakes – the latter trait not in great supply among prosecutors. I urge Lehmberg and her colleagues to read Smith's article and the associated documents; to review the embarrassing, useless forensic interviews with the children; and to take a fresh look at the Keller case that was assembled, prosecuted, and decided in hot blood.

If she honestly and thoroughly does so, I don't believe she can come away believing that justice was served.

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