The Austin Chronicle

Learning From Our Mistakes

Fran and Dan Keller were prosecuted wrongly and unjustly. It's long past time for their complete exoneration.

By Michael King, March 11, 2016, News

"Sometimes, it feels like we're still in prison."

In late December, Fran and Dan Keller were talking to a reporter in their small rent-house near New Braunfels, and quietly describing how it feels to have been released from prison after 21 years, yet still have so little freedom of movement or circumstance, or even quality of life. Their 1992 conviction on multiple counts of "sexual assault of a minor" – in the now notorious Fran's Day Care case – has effectively been overturned by a May 2015 Court of Criminal Appeals ruling "granting relief" to the Kellers on a single question of retracted medical testimony. But the ruling was not accompanied by actual exoneration from the allegedly heinous crimes.

Only a single appeals court judge – Cheryl Johnson – was willing to admit no crime had in fact occurred. "This was a witch hunt from the beginning," wrote Johnson, in her opinion concurring with the opaque ruling of the full court. Johnson would have granted relief on all the Kellers' claims, and would have acknowledged that the entire prosecution had been an egregious folly.

The limited ruling, while welcome in itself, left the Kellers in a legal limbo – permanently accused but not cleared, and never to be tried. Their felony convictions have been "vacated," but they're technically on bonded status, and their daily lives are substantially restricted. "We still have a felony on us," Fran said, because the absence of an explicit exoneration leaves her and Dan at the mercy of any online background search. Without a clearing of their names, not only can they not live openly without fear of disgrace or retribution, they can't readily find employment adequate to their needs, any rental process is a minefield, and they can't hope to buy a home of their own. For fear of another accusation, they avoid being in the company of their 11 grandchildren or 24 great-grandchildren outside the presence of another adult. Even their lives prior to their arrest do not fully belong to them: Fran reports that family photo albums and other keepsakes seized by police during the original investigation – which provided no evidence of any wrongdoing – have never been returned.

"It's as though we're still considered criminals," said Dan. "We didn't do anything. We still respect the law. And we're still being punished. Sometimes it feels like we're still locked up."

In the absence of an exoneration from the court, there remains one person who can act upon the complete absence of evidence against the Kellers, and can publicly acknowledge once and for all that the crimes the Kellers were accused and convicted of did not happen.

"It's me," said Travis County District Attor­ney Rosemary Lehmberg in January. But while sympathetic to the Kellers' strained circumstances – when it became clear that the original prosecution had collapsed, she agreed to their release from prison – the district attorney told the Chronicle she found herself still unable to "find a path to innocence." In previous local exonerations, Lehmberg recalled, DNA evidence eventually led away from the person convicted. In this case, the absence of any physical evidence that a crime had actually been committed has had a perverse result: It has thus far prevented Lehmberg from further action.

"I have never done an exoneration where I wasn't sure," Lehmberg said. "I must be, myself, assured either that this person didn't do it, somebody else did, or, that person is actually innocent. I'm not gonna tell you I don't still think about it."

In late February, the district attorney reiterated her position. "I've really, really given it a lot of thought," she insisted. "And I just don't see a way to agree to actual innocence for them."

No Happy Ending

Although the court's ruling and the prosecutor's decision not to retry the case have removed the Kellers' immediate legal jeopardy, after so many years in prison (Fran is now 66, Dan is 74), their financial circumstances are quite difficult. They live on their limited Social Security payments – after more than two decades out of the workforce – and support from family, all of whom stood by them from the beginning of their ordeal, firmly convinced that they had done nothing wrong. They don't know how permanent their current home is – their landlord is an elderly relative – and without it, they would likely be imposing (as they see it) on their children. (In recent weeks, Fran has wondered uncertainly if she and Dan should try to create some sort of personal fundraising effort.)

In justice, the Kellers should be eligible for financial compensation from the state of Texas, for having been wrongly incarcerated for 21 years (the family counts 23, dating from their 1992 conviction through their continuing legal purgatory). No longer convicted of any crime, they remain under a permanent cloud of accusation, required to somehow further demonstrate their innocence – of crimes that never happened.

"Everyone thinks this story had a happy ending," says Keith Hampton. "But it still hasn't ended, and it isn't happy."

Hampton is the Kellers' (pro bono) attorney, who successfully represented them before the lower and appeals courts and finally persuaded the judicial system to grudgingly, incompletely acknowledge that incarcerating two innocent people for decades was unjust. In the course of that defense, which began in 2012, Hampton has become an encyclopedic authority on the crimes that never happened at Fran's Oak Hill Day Care center. As he wrote in an unsuccessful request that the Court of Appeals reconsider its limited 2015 ruling, "This case has a legal, historic significance. Applicants' convictions were the clear product of a period of hysteria now identified as the 'Daycare Panic' or the 'Satanic Panic.'" The most notorious relic of that period was the McMartin Preschool case in California, which involved more children, more alleged abusers, and equally fantastic tales. But the Fran's Day Care case is Travis County's own miniature McMartin case, an unremoved stain on our local justice system, with similarly devastating effects on the accused – the Kellers and others – as well as on the alleged child victims and their families.

Hampton's various briefs recount the incredible, absurd lengths investigators pursued in trying to confirm elaborate, impossible tales imagined by young children, under constant pressure from their credulous parents and investigators: ritual murders of children and animals, shark and tiger attacks, secret burials in various cemeteries, multiplying accusations against randomly selected adults, and so on. John­son, aptly citing the 17th-century Salem witch trials as historical precedent for the Keller investigation and prosecution, recounted the utterly spurious claims of two children who had been most persistently suborned by adults into telling frankly unbelievable tales, and wrote: "In spite of such fantastical claims, which should have produced total incredulity in the police investigators and prosecutors, charges were filed."

The whole story was told here by former Chronicle reporter Jordan Smith, starting with her March 27, 2009, feature, "Believing the Children," and concluding with her December 6, 2013, account of their release, "Freedom for the Kellers." By the time Smith's first article was published, the Kellers had been imprisoned 17 years.

In 1992, after months of elaborate and futile investigations and pressurized interviews, three children had claimed Fran, Dan, and several other adults had abused them – including several police officers and various neighbors randomly implicated by the children or their parents. (Some were subsequently sued in a civil action that came to nothing.)

Although the children's tales, if remotely accurate, should have been able to be confirmed by voluminous physical evidence, all the prosecution provided was testimony from a young emergency doctor, Michael Mouw, who said he had examined one child for signs of sexual abuse, and that small deformities on her hymen might have been caused by abuse. In the absence of any other physical evidence, some jurors later said they were persuaded by Mouw's testimony.

Mouw subsequently told investigators that he had likely been mistaken; with more experience and training, he had since learned that the child's apparent injuries were normal genital variations. Mouw said the investigators told him not to concern himself, that there was plenty of other evidence of abuse. They were lying.

In 2009, Smith found Mouw and asked him about his testimony. He was mortified to learn that he had been a conclusive prosecution witness in the Kellers' trial. He has since publicly retracted that testimony, more than once – without it, the case against the Kellers entirely collapsed.

The Kellers say they don't blame Mouw for their imprisonment, and indeed praise him for having the courage to come forward. "The police just kept telling him, don't worry about it, forget about it, because we have so much other evidence besides you – which they didn't have anything," Fran told the Chronicle. "But at least he kept trying, and finally got through. We praise him for that; that was wonderful. ... It took a helluva man to admit something like that."

Mouw's retraction was the basis of the reversal of the Kellers' conviction (the one factor on which the appeals court granted relief), and Lehmberg acknowledges that there would be no point in retrying the case without the doctor's testimony. His retraction – along with the overwhelming absurdity of the entire prosecution – should also be the basis of their exoneration. A finding of innocence by the district attorney would enable the Kellers to clear their names and potentially receive state compensation for all their years in prison.

A Path to Innocence

"I haven't been able to find a path to innocence," Lehmberg said last month.

Lehmberg acknowledged that without Mouw's testimony, there was very little else on which to pursue a conviction. (Lehmberg was not a prosecutor at the Kellers' trial, but at the time she was head of the D.A.'s child abuse division, with administrative jurisdiction over the case.) "We tried that case as a straight sex-abuse case," she recalled and said that the wilder stories associated with the children's tales were primarily introduced by the defense, to discredit the charges.

But the prosecution also introduced the recanted confession of Doug Perry, a friend of Dan Keller and ex-husband of a constable, dragged into the case after one of the children identified the photo of another officer whom the Austin Police Department investigator found not credible as a suspect – so he followed a trail of association to Perry. Intimidated and threatened by Texas Rangers in an extended interrogation, Perry confessed to an implausible orgy with Fran and Dan and some children – although none of the children had mentioned any such episode, and Perry immediately and repeatedly retracted the confession. But he was required to read it aloud at the Kellers' trial, even as he denied its contents. Perry pleaded guilty, was imprisoned, and eventually released – only to be re-imprisoned for a parole violation. He was again free when he died, late last year. (If not, his case might have provided another avenue to exonerating the Kellers).

Both the Kellers and Perry each passed two polygraphs concerning the case. According to the statistical probabilities, argued Hampton, "The probability that three people could have lied yet passed their polygraph examinations [twice] is 1.56 percent. They have all passed multiple polygraphs because they are telling the truth and are innocent."

Two of the three children, now adults, who accused the Kellers – including their original accuser – now say they no longer remember much of what happened and want nothing further to do with the case. A third, said Lehmberg, insists he still remembers being abused at Fran's Day Care. In 1992, he was 6 years old, and he testified by video against the Kellers – but only after months of leading interrogations by both investigators and his parents. Yet Lehmberg said his continuing insistence that he was abused has given her pause. Hampton countered that the grown man's imposed recollections are no more persuasive now than when he was a suborned child: "The imaginary events are probably emblazoned in his mind. His claims of magic planes, evil police, and cave-making machines are as unbelievable today as they were to the jurors who heard the case." Hampton said that after prosecutors interviewed the man last year, they told the attorney that his testimony would be completely unreliable.

Indeed, at the time of the investigation, his parents had become convinced not only that the Kellers were guilty, but so were numerous investigators, police officers, random Oak Hill neighbors, and Travis County officials – including then-District Attorney Ronnie Earle. Earle's guilt was suggested to them in part because he lived near a goat farm – not exactly rare in Texas, but in credulous eyes, carrying an implication of Satanism.

Lehmberg said she knows that many of the children's allegations were fantastic – that if Earle was accused of complicity, then presumably so was she – but has not been able to persuade herself that she's effectively trying to prove a negative: that someone must be guilty, of crimes that never happened. "Ever since I interviewed that [grown] child ... I've just thought, how can I make that actual innocence decision? I think, right now, I've done everything I can."

"It Was All Lies"

Although troubled by their difficult circumstances, the Kellers are resilient. They waver between stoic, even cheerful resignation and occasional expressions of resentment. Both have medical problems caused or aggravated by imprisonment, and by violence from other inmates and guards.

Especially during the first decade, it was not routine incarceration. Both experienced suspicion and violence from inmates or guards who presumed they were guilty of crimes against children (amplified through the prison grapevine). Fran was attacked by four inmates who raped her with a broom or mop handle; she still suffers physical problems from that attack. On two other occasions, she was assaulted by guards; one of those attacks ended in a rape. When there was work in the prison fields, she sometimes had to run to safety from prisoners gathering to attack her. She still has nightmares about those assaults, she said, often after someone has asked her about her imprisonment.

"To this very day, if anything like this comes up ... I still have nightmares," Fran said. "[Dan's] the one that pays for it, because if I'm not screaming I'm kicking and fighting. ... And I don't know I even do this until he tells me, and he wakes me up. He usually wakes me up, to let me know."

Dan was also attacked in prison – he says one inmate intervened and saved his life when two others were about to throw him over a balcony to his death. Another time, he was waiting in line when a guard and an inmate inflated a latex glove and popped it behind his head. He already had one broken eardrum; the impact broke the other ("I went down on my knees, it hurt so bad"), and the absence of adequate medical care eventually left him deaf in that ear and with little hearing in the other. "My ears hurt so bad," Dan recalled, "and ever since then, [my hearing] went downhill." Prison doctors, the Kellers said, also knew of their charges and would send them away without treatment. "They would treat other people for the same thing," said Fran, "but they would just – we were shut out: 'Nothing, we can't help you.' Because when you go to the doctor, it's right there on the screen, your case, what you're in for."

Both have continuing difficulty accessing or affording health care. Fran: "[Dan's] knees are really bad. He needs surgery, but we can't afford it. We need specialists left and right to fix what's wrong from here ... but we can't afford it."

Relieved to be released, and having forgiven their accusers, they still ask for exoneration and recompense. "But yes, it has ruined our lives," Fran said. "All we can do is go day to day, and hope for the best. Because it is real hard out here, just living on Social Security. It's really hard."

Dan is generally calm, even serene, and seems somewhat more resigned to their history and situation than Fran, whose frustrations occasionally flare into anger. Both said prison became more bearable after a dozen years, when guards and fellow inmates finally realized that they were not headline villains but ordinary people. Fran's daughter, Donna Tamez, said Dan eventually gave himself entirely over to God, as reflected in the prayers he wrote and extraordinary paintings he made using only coffee applied with a Q-tip. "Some people get very angry and bitter," Tamez said, "and some people turn their life over to God. If he wanted to keep his sanity in there, that was his way of dealing with it – through prayer and believing and having faith."

Tamez, along with all the other family members, said she knew immediately, when the charges were brought, that "none of it was true." All recall the kindness and love for children that moved Fran and Dan to start a day care in the first place, and they can't now understand – with the demonstrated lack of any evidence – why they have not been exonerated and compensated for the injustice against them.

"Financially, their situation is not good at all," Tamez said. "They strictly live off their Social Security, and if they didn't have that, they wouldn't have anything."

Jerry Keller, Dan's brother: "They were falsely accused, I know that."

Donna, Jerry's wife: "They deserve to be cleared."

Janie Avery, Dan's sister: "It's wrong and an injustice that their name isn't cleared."

Victor Keller, Dan's brother: "They were railroaded. ... The family has never doubted it was all lies; they should be exonerated and compensated."

"It's Me"

"How can you prove that something happened, when nothing happened?" Fran said, a question she'd like to direct to Lehm­berg. "We can't prove we didn't do anything, because there was nothing there." That's the philosophical dilemma the district attorney faces, as she contemplates not only this decades-old case still lingering on her desk, but her announced retirement from office at the end of the year – meaning that one important piece of her legacy, for good or ill, is still connected to the Keller case.

According to Hampton, a few words instructing the courts and the state that "no credible evidence exists that the Kellers are guilty" for the alleged Fran's Day Care crimes would serve not only to exonerate them, but make them eligible for compensation for their years of unjust imprisonment. Asked in January what it would take to persuade her to take that action, Lehmberg hesitated.

"I can't just answer that," she said. "I can't tell you what it would actually take. It's going to take my believing that they're actually innocent. And I certainly am conflicted. ... This isn't about my political capital, or anything like that – and you're right, if it's going to happen, it's going to be in the next few months."

She replied again, when asked on whom the decision rests: "It's me."

If Lehmberg doesn't act before the end of her term, it's possible that the indefatigable Hampton will find some other avenue to get true and final justice for the Kellers. Both he and Lehmberg note that one alternative is a judicial pardon, and Hampton believes that's a real, if more difficult, possibility. But Lehmberg has it within her power to end this ongoing injustice – in which all of us, as citizens of Travis County, share – now.

However, in a brief phone conversation in late February, Lehmberg sounded more adamant that she would not be changing her mind, and that she "can't imagine anything" that would now persuade her to do so. "I'm not going to retry the case, obviously," she said. "So that's about as far as I'm willing to go ... and I can't retry it because of Mouw, mainly. I just don't see a path to actual innocence on this. There's no way for me to determine that they didn't do it, or that a crime didn't occur."

Hampton said that when he spoke to the district attorney last year, he tried to emphasize that an exoneration is not about pointing fingers or assessing blame, but about finding some way to right a terrible wrong. He has repeatedly offered to her an "unconditional," private meeting with the Kellers – so she can assess for herself their characters, and even their potential guilt. "These people are innocent, and she holds all the keys. Why would you not meet with them? But she doesn't avail herself."

As he recalled their conversation, "I said, 'We as a society did this. We as a society can't turn back the clock, but by God we can do a little something for the Kellers, and this is it.'"

Smith, whose dogged dedication to the Kellers' story eventually established Mouw's recantation and inspired Hampton to instigate Fran and Dan's release, summed up her own perspective: "What happened to Fran and Dan Keller is a tragedy, and it is an ongoing tragedy. They were sent to prison for a crime that never even happened. At this point, the only person who can truly set this right is Rosemary Lehmberg – and it is her duty to do so. Prosecutors hold a special place in our criminal justice system. They're supposed to prosecute crimes but also see that justice is done. In the Keller case, to date, Lehmberg has abdicated that most important part of the job."

Lehmberg might also find recourse and rightful justification for action in the words of Judge Cheryl Johnson: "It was not just Dr. Mouw who was too quick to believe. 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."

Posted here is Judge Johnson's concurring opinion in the Court of Criminal Appeals ruling granting relief to the Kellers.

Posted here is Attorney Keith Hampton's "Suggestion for Reconsideration," following that ruling, which also provides a useful summary of the case.

Travis County v. Fran and Dan Keller: A Timeline

1989: Fran and Dan Keller open a small day care center in their Oak Hill home, eventually caring for 8-10 children each day, ages 3-9.

Aug. 15, 1991: Three-year-old Christina Chaviers, an occasional drop-in at Fran's Day Care, complains of a spanking by Dan Keller; under pressure from her mother and the unlicensed therapist who had been treating Chaviers, the complaint is amplified into satanic ritual abuse. That evening, Brackenridge Emergency Dr. Michael Mouw diagnoses possible sexual abuse of Chaviers.

Aug. 16, 1991: Travis County Sheriff's department begins investigating alleged child abuse at Fran's.

August-December: Two other children and their parents begin alleging abuse at the day care, with increasingly elaborate stories of abductions, murder, and flights to Mexico.

December 1991: The Kellers are indicted for sexual assault of a child; indictments of three other adults follow.

Nov. 30, 1992: After a six-day trial, the Kellers are sentenced to 48 years in prison for sexual abuse of children.

April 1994: Texas Monthly publishes "The Innocent and the Damned" by Gary Cartwright, the first detailed re-examination of the Keller prosecution.

November 2008: Rosemary Lehmberg is elected as District Attorney of Travis County. On the campaign trail, citizens raise questions about the Keller prosecution; Chronicle reporter Jordan Smith begins reviewing the Keller case.

March 2009: Gary Cartwright appends a note to his original 1994 story, which begins: "Back in 1994, as I was working on this story, I became convinced not only that Dan and Fran Keller were innocent, but that the crime they were accused of had never happened. That conviction has only deepened with time."

March 2009: Chronicle attorney Pete Kennedy successfully sues the city of Austin to release an Austin Police Department memo summarizing the original investigation of the child abuse allegations against the Kellers.

March 27, 2009: The Chronicle publishes "Believing the Children," by Jordan Smith; Dr. Michael Mouw tells Smith his original medical testimony was inaccurate: "I think that if I had that case now, I'd probably decline to [do the exam and would] send it to an expert. And I would decline to testify."

Jan. 14, 2013: Attorneys Keith and Cynthia Hampton file an appeal of the Kellers' conviction.

August 2013: At a district court hearing, D.A. Lehmberg agrees the original trial was rendered unfair by since-retracted medical testimony: There's a "reasonable likelihood that ... false testimony affected the judgment of the jury and violated [the Kellers'] right to a fair trial."

Nov. 26, 2013: Fran Keller released from prison.

Dec. 5, 2013: Dan Keller released from prison.

Dec. 1, 2014: Judge Wilford Flowers rejects Keller request for relief, requires proof of innocence.

May 20, 2015: Court of Criminal Appeals grants relief on one claim, recanted medical testimony; Judge Cheryl Johnson calls the prosecution "a witch hunt."

May 28, 2015: Attorney Keith Hampton files a "Suggestion for Reconsideration" (denied).

August 2015: Following a hearing, Travis County D.A.'s Office declines to retry the Kellers.

February 2016: District Attorney Rosemary Lehmberg declines to pursue exoneration for Fran and Dan Keller, saying, "I can't find a path to innocence."

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