Point Austin: Truly Free
Exonerated at last, may Fran and Dan Keller finally “breathe free”
In a prison cell in the mid-Nineties, Dan Keller had a religious epiphany accompanied by the voice of God, who assured him: "You're going to go home – I just have to sort out a few things first." On Tuesday, Keller smiled broadly as he signed the documents formally exonerating him: "I always believed that – I just didn't think it would take so long."
Dan and Fran Keller entered prison in 1992 – convicted of sordid crimes at their Oak Hill child day care center, crimes that had in fact never occurred – and it took 25 years in all for Dan's faith to be rewarded. It's difficult to celebrate a vindication that took so long, and caused so much pain, suffering, and heartache – to its suborned child "victims" as well as to the Kellers. But at long last, the Kellers can "breathe free," as Fran said Tuesday, and once the state of Texas fulfills its compensatory obligations, should be able to live comfortably, even afford health care. "We can be with our grandchildren, without supervision," they said with visible joy. In time, the cloud of permanent guilt and suspicion may begin to lift.
In 2013, then-Travis County District Attorney Rosemary Lehmberg acknowledged that the case against the Kellers was unfounded, and in 2015 the Court of Criminal Appeals reversed their original convictions on child abuse, on the grounds that the only physical evidence – the retracted testimony of an emergency room doctor – had rendered the verdict unfair. But Lehmberg declined to conclude that the Kellers were "actually innocent" – leaving the responsibility to her successor, D.A. Margaret Moore, who finally concluded this week that "no credible evidence exists that inculpates the defendants" and that the Kellers "are actually innocent of the crime for which each was sentenced."
Accordingly, Moore's motion for dismissal on the basis of "actual innocence" was accepted by 147th District Court Judge Cliff Brown, thereby exonerating the Kellers. Moore told the Chronicle that under the law, the exoneration decision rested entirely on her as the "state's attorney," and was based on her personal review of the available record. "I owed that to the integrity of the process. … I made this decision for all the right reasons, and wanted to do it the right way."
Doing the Right Thing
Moore was careful to say that there is no way to determine what "really happened" 25 years ago, but that a "reasonable juror" could not now convict without substantive evidence. "In that context," she told me Tuesday morning, "I believe this [the exoneration] was the right thing to do and the correct thing to do, under the law." She also acknowledged quietly, "It took a little too long to get to this point."
Moore is to be congratulated for doing what her predecessor would not. As the Kellers' attorney Keith Hampton put it: "She figured out how to do the right thing, and then did it. That's all you can ask from a prosecutor, or indeed from anybody." In doing so, Moore not only exonerated two innocent people, she made a major step toward fulfilling what she describes as her primary reason for running for district attorney: "To restore the confidence of the community in this office. … I hope this decision helps to restore that confidence."
The Kellers have been expressing fulsome thanks for Moore's action and the help they have received from many others, but that grateful litany should really be coming from the rest of us, responsible as a community for what happened to the Kellers. When Lehmberg ran for D.A. in 2008, some voters raised questions about this prosecution; acting on those questions, Chronicle reporter Jordan Smith began digging into the story ("Believing the Children," March 27, 2009). Chronicle attorney Pete Kennedy sued the city of Austin to release the original police report, which reflected an astonishingly credulous investigation that treated as facts the children's impossible stories of "satanic abuse." Smith interviewed Dr. Michael Mouw, who was stunned to learn that his testimony had convinced the jurors of the Kellers' guilt (he had earlier recanted to investigators, who shrugged and dismissed him). Mouw was steadfast in renouncing his mistake ("Learning From Our Mistakes," March 11, 2016).
Hampton accepted the Kellers' case, and worked pro bono (assisted by Cynthia Hampton) for what has become years, first to get them released from prison, and now, finally, to have them fully exonerated. His work continues, to assemble the documentation and pursue the process that will enable their financial compensation from the state of Texas – for 21 years of unjust and sometimes brutal imprisonment, and lingering devastation to their lives and those of their families.
My former colleague, Jordan Smith (now at the Intercept), has since become close to the Kellers. She told me, "I'm so very happy that this day has finally come for them. They really deserved exoneration, and compensation after all these years. They never deserved to be in the position they were in, and the years in prison. I just hope they can finally be truly free."
Read D.A. Moore’s press release announcing the Kellers’ exoneration here.