Notes on Kamp: Unfinished Business
It's not too late for Rosemary Lehmberg to right a wrong
As Travis County District Attorney Rosemary Lehmberg's term comes to a close, she continues to be best known for one thing: Her 2013 arrest for drunk driving. It's unfortunate, and perhaps unfair, but that incident has dogged her ever since.
There may be nothing Lehmberg can do at this point to change the public's perception of her time as D.A., but she has a valuable – though soon expiring – opportunity to change her legacy. In 1992, Lehmberg was the head of the D.A.'s child abuse division, which, as Michael King notes in this week's cover story, "Learning From Our Mistakes," Mar. 11, had administrative jurisdiction over the prosecution of Fran and Dan Keller.
Michael's article is just the latest of several, many written by former Chronicle staff writer Jordan Smith, to detail the continuing wrongs done to the Kellers by our local justice system. In 1992, the Kellers were convicted of child abuse on scant, and – as it turned out – false evidence. The two spent 21 years apiece in prison before their convictions were overturned in 2015. They have yet to be exonerated.
Michael treads lightly this time around when recounting the circumstances of the trial; that's not the point of his story, which is more about the Kellers' current circumstances. However, interested readers need look no further than attorney Keith Hampton's "Suggestion for Reconsideration," available online with the article, to see how deeply enmeshed in the panic of the day our local justice system was: "In this case, investigators and others were swept up in the hysteria of the times so fully that they scoured the records of at least eight airports searching for a mythical airplane which could land in a residential neighborhood, kidnap children from daycare, deposit them in Mexico where they were molested, then return them with no one noticing. Police equipped a helicopter with an infrared camera and flew over at least eleven cemeteries in search of sites of human sacrifice. They searched everywhere and investigated everyone even remotely suspected of nefarious, supernatural activities. While detectives investigated other detectives, parents – with police participation – took four-year-old children to various cemeteries across Travis County and encouraged them to roam around grave sites in an effort to identify satanic activities."
I understand, to an extent, where Lehmberg is coming from. It's impossible to know for absolutely certain that no abuse took place. But it's impossible to know most things for absolutely certain. What we do know is that there wasn't enough valid evidence to convict the Kellers. The Court of Criminal Appeals recognized this in overturning their conviction. The Kellers shouldn't be prevented from being exonerated just because there is no physical evidence proving that abuse didn't occur. (I have to wonder what positive proof there could ever be that no abuse occurred. Should everyone who cares for children wear a body camera, just so that if they're ever accused of wrongdoing, they can prove otherwise?)
Refusing to exonerate the Kellers makes no more sense than if the court had decided they deserved to remain in prison because of the impossibility of positive proof. There was not enough valid evidence to convict the Kellers, therefore their conviction was wrongful, therefore they deserve to be compensated for their decades-long incarceration.
A willingness to revisit old cases and admit mistakes where they exist is good not only for the potentially innocent wrongfully convicted. It also will strengthen the credibility of the office as a whole. When I first read about the Kellers, I immediately wondered, how many other people – who for whatever reason haven't been able to get the attention of an attorney or a journalist – have been convicted in Travis County on the basis of flawed evidence? It's a scary thought, but it's one that needs to be reckoned with. If Lehmberg were willing to admit the wrong done to the Kellers, she would be setting an example. She would be showing that our justice system, here in Travis County, can hold itself accountable when it makes a mistake.
Should Lehmberg decline the opportunity, her likely successor Margaret Moore will have the chance. Moore ran for the office as an outsider and a reformer, and one hopes that impulse will extend to this case. It would be a shame, however, if Lehmberg missed her chance. What she does in this instance carries far more weight than any drunk driving arrest.
She can give two people who had decades of their lives taken away from them a chance at a happy ending.
I would be remiss if I didn't take the time to mention my continuing gratitude for being able to work with Michael King. Michael has been a valuable mentor to me as my predecessor in this position, a clear eye when he was my editor, an encyclopedic resource of local political history, and – as evidenced by this week's story – a wonderful writer and reporter for this paper. His genuine concern for the fate of the Kellers propelled him to complete this story before he went on leave. The resulting article is a reminder of just how much of an asset he continues to be to this paper and this town, and while I grudgingly admit that no one deserves a break more than he does, I eagerly await his return.
Editor's note: This column has been updated to note that Margaret Moore is Rosemary Lehmberg's likely successor. Moore won the Democratic primary, but will face Republican Maura Phelan in the general election in November.