Point Austin: Justice Too Long Delayed
Fran and Dan Keller continue to wait in vain for their exoneration
By Michael King, Fri., June 16, 2017
I don't know what it will take for Travis County to wipe the stain of the Fran and Dan Keller prosecution from our local history, but at a minimum, it appears it's going to take more time. As we've reported previously, in 1992, in the midst of the nationwide "Satanic Panic" over day care, the Kellers were prosecuted, convicted, and spent more than two decades in prison for horrible crimes at their Oak Hill day care center – crimes, it turned out, that had never occurred. Thanks to the dedicated work of former Chronicle reporter Jordan Smith, and the dogged pro bono persistence of defense attorney Keith Hampton, the Kellers were freed from Texas prisons after 21 years ("Believing the Children," March 27, 2009, and "Learning From Our Mistakes," March 11, 2016).
Although freed from literal prison, the Kellers have never been fully exonerated, which is necessary for both their peace of mind and for them to become eligible for the state compensation they deserve and very badly need. Former District Attorney Rosemary Lehmberg, who had the authority to enable that exoneration, left it undone when she stepped down – saying that while there is in fact no evidence that any crime had occurred, a few people close to the case had convinced themselves that something must have happened, and therefore she could not find for herself "a path to innocence."
I had high hopes that Lehmberg's successor, Margaret Moore, would see the folly of that cowardly inaction. Hampton had pursued the case with the D.A.'s staff, and believed that exoneration was being given serious consideration. But a couple of weeks ago, I learned unofficially that Moore or her staff were instead leaning toward reviewing the entire Keller case – re-re-reviewing is more like it – before they would recommend or take any action.
I haven't been able to confirm that situation, because neither Moore nor her staff are currently returning Chronicle phone calls.
If the D.A.'s Office really needs something to review, they could begin and end with Court of Criminal Appeals Judge Cheryl Johnson's concurring opinion when the court granted (partial) relief to the Kellers: "We do not learn from our mistakes unless and until we are required to acknowledge those mistakes." Johnson accurately described the prosecution as "a witch hunt from the beginning." If they need more detail, they could read Hampton's "Suggestion for Reconsideration," which briefly but comprehensively summarizes the witch hunt in all its absurdity. "All that remains as 'proof' are the fantastical stories – woven not so much by children as through them, originating from adults swept up in hysteria. The stories are not child fantasies. The imagery is the stuff of adult anxieties."
I asked Hampton if he thinks there is any possible justification for prolonging the Kellers' decades-long agony by yet another prosecutorial review, or for more hesitation on exoneration. "We've been jacking around with this for years," he responded wearily. "This is extremely well-plowed ground. There have been two previous reviews by the D.A., and two by the defense. I can't imagine what is left to be looked at."
The attorney began to recite the litany of follies of the original prosecution – which he could readily repeat for D.A. Moore, if she were listening – then concluded: "This case was really about the 'Satanic Panic' … The whole case is a textbook example of the hysteria of the times."
If all this were not enough, the now elderly Kellers, who have been remarkably stoic and patient – even forgiving – during their long ordeal, are near a breaking point. They live on minimal Social Security, supplemented unevenly by family and friends, and both have serious health problems (caused or aggravated by imprisonment) that they can't afford to address. Worse, their spirits are breaking – on the phone trying to discuss their circumstances, Fran quickly breaks down in tears, and she says the normally resilient Dan (deaf from prison neglect) has become increasingly despondent.
We can't fix this injustice entirely; it's gone on too long, and some of the worst damage is irreparable. The Keller case was a local outbreak of a mob-madness that gripped the entire country (and which simmers always beneath the cultural surface, in various forms). But the responsibility doesn't just rest with the D.A.'s Office, which was and is no more than an instrument of community justice. All of us who live in Travis County share in the responsibility for what happened to the Kellers, and share in the responsibility to do what we can to make it right.
If any Chronicle readers believe they might have some ameliorating or persuasive influence on District Attorney Moore or her office – please, please employ it now. For the rest of us, supporters of the Kellers have established a GoFundMe campaign – "Friends of Fran and Dan Keller" – and if you can afford to contribute even a little bit, please do so. The Kellers need and deserve our help.
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