Kellers' Conviction Tossed by CCA

Wednesday’s decision by the Texas Criminal Court of Appeals to overturn the 1992 sexual assault convictions against former child care providers Frances and Dan Keller is one small step. Despite mounting evidence that the two did no wrong, the court still declined to find her completely innocent.

The CCA’s unanimous decision to revoke the Kellers’ conviction – a 48-year sentence for aggravated sexual assault against a child – follows the Kellers’ late 2013 release from prison when after the case against them deteriorated. Dr. Michael Mouw, a novice emergency room doctor in 1991, revealed years after the trial that he was confident he provided false testimony (therefore negating the only piece of physical evidence against the Kellers). After 22 years in prison, the two were released on bond. The Kellers then turned to the CCA to ask for a declaration of complete innocence. On Wednesday, Texas’ highest court granted relief to the two, in separated filings, finding that they were convicted on the basis of false testimony, and remanded them to the custody of the Travis County sheriff.

The nine judges who sit on the CCA did not provide an explanation for the decisions, but a concurring opinion filed by Judge Cheryl Johnson does all that it can do to discount the charges against the Kellers. Her three page perspective, issued on Wednesday in conjunction with the ruling, calls the case “a witch hunt from the beginning,” and recounts in detail the fantastical allegations based on the testimony “of a 3-year-old child, who, even before she sporadically attended the applicant’s day-care facility, was in therapy for numerous psychological and behavioral issues.” Johnson also makes mention of the “complainant’s bizarre accusations” being supported at trial by the testimony of a 6-year-old “who insisted that his teddy bear was alive and could talk.”

“It was not just Dr. Mouw who was too quick to believe,” Johnson concluded. “If he is to be blamed for the failure to provide applicant 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 cases now return to Travis County, where District Attorney Rosemary Lehmberg will have to choose being retrying the couple (a tall task, considering Mouw’s recanted testimony and the prosecution’s lack of any physical evidence) or dismiss the charges altogether. Keith Hampton, the Kellers’ attorney, said Thursday that he’s planning to file a motion for reconsideration with the CCA next week, and hopes to bring the case before a federal court. Otherwise, the final decision rests with Travis County.

“If none of this works, [Lehmberg], or her replacement in a couple years, will have the chance to say, ‘You know what? We agree. They’re exonerated.”

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This post has been updated with comment and clarification from Keith Hampton.