A declaration of innocence in Austin ‘satanic day care’ case

8:06 p.m Monday, June 19, 2017 Local

The end has arrived for one of Travis County’s most controversial court sagas.

Nearly two years after the state’s highest criminal court overturned the child sexual abuse convictions for day care owners Dan and Fran Keller, Travis County District Attorney Margaret Moore will file court documents Tuesday declaring them “actually innocent” under the law and dropping pending charges against them.

The decision will resolve all outstanding criminal issues for the Kellers, who were convicted in 1992 and served more than 21 years in prison in a case that generated national headlines amid allegations that they performed satanic rituals on the children. The couple, now elderly and described by their lawyer as destitute, has been free on bond since 2013 and will each be able to apply for $80,000 for every year mistakenly spent in prison.

“I believe under the law that I am charged with this responsibility — and it is my personal decision,” Moore told the American-Statesman and KVUE-TV.

In a prepared statement to be released Tuesday, Moore said she is filing a motion to dismiss the charges because, “no credible evidence exists that inculpates the defendants” and “I believe that the defendants are actually innocent of the crime for each was sentenced.”

The case was unresolved when Moore took office in January. She said her only options after the decision of the Texas Court of Criminal Appeals were to retry the case — which she said was not feasible or appropriate — or dismiss it for standard reasons, such as insufficient evidence or the need for more investigation.

Moore said after consulting other prosecutors, reading a transcript of the Kellers’ trial and reviewing state law, she thinks the couple meets the legal standard for actual innocence, meaning there is not enough credible evidence that they committed the crime and that a reasonable juror would not convict them.

Convicted in a joint trial in 1992, the Kellers were sentenced to 48 years in prison after three young children accused them of sexual abuse during bizarre satanic rituals in the day care they had operated for two years from their three-bedroom home in Oak Hill.

In tales that grew more fantastic as the investigation progressed, the children recalled watching the Kellers dismember babies, torture pets, unearth and desecrate corpses, videotape orgies and serve blood-laced Kool-Aid.

At least four law enforcement agencies conducted wide-ranging and vigorous investigations, yet no proof of satanic activity was discovered.

But it was the early 1990s when a cottage industry of therapists, authors and investigators peddled now-discredited claims of a national network of secretive cults that targeted day care children for sex and other ritualistic horrors – often under the protection of top politicians and law officers.

When defense lawyers argued that the children’s tales were too far-fetched to be believed, prosecutors countered with a psychologist, billed as an expert in satanic ritual abuse, who testified that some sex abusers used bizarre rituals to intimidate and control their victims.

The Kellers, tried for sexually assaulting a 3-year-old girl in their care, were found guilty.

The case against the couple began falling apart in 2013, when the only physical evidence of sexual assault was acknowledged as a mistake made by a young doctor with little experience examining young children for abuse.

Dr. Michael Mouw, an emergency room physician who examined the 3-year-old girl in 1991 on the night she first accused Dan Keller of abuse, was a key witness at the Kellers’ trial, testifying that he found two tears and a fissure in the girl’s hymen.

Mouw recanted, acknowledging that what he had identified as tears were instead normal variations in pediatric hymens – information he learned years later at a medical seminar.

Faced with Mouw’s change of heart, Travis County prosecutors made two important concessions: They agreed to free the Kellers from prison on a signature bond, and they agreed to ask the courts to throw out their convictions because the doctor’s mistake denied them a fair trial in 1992.

Freedom came in late 2013. Dan Keller was 72, had difficulty hearing and walked with a cane but insisted that he was not bitter, saying: “I forgive everybody.”

Fran Keller, then 63, recalled years of prison assaults and bullying from inmates who targeted those convicted of child sex crimes. Still, she said, she did not blame the children who alleged that they had been abused.

“The children didn’t do anything. Children can be swayed by adults, but they didn’t do anything,” she said. “I’m just glad to be out and be able to start a life over.”

Their fresh start included asking the state’s highest criminal court to void the convictions and to declare them innocent.

“I want the Keller name back on good standing with everyone,” Fran Keller said at the time. “I don’t want this hanging over our heads.”

Defense lawyer Keith Hampton, who worked on the Keller case without pay, had spent three years amassing volumes of information attacking every aspect of their convictions. In court documents, Hampton argued that the Kellers were the victims of a “satanic panic” that swept the nation in the early 1990s — fed in Austin by the combined efforts of inept therapists, gullible police and an investigation that spiraled out of control, eventually producing a suspect list of 26 ritual abusers, including an Austin police captain and many of the Kellers’ neighbors.

Hampton also got creative. The Kellers were found free of sex-offender tendencies after examinations by mental health professionals. They passed two polygraphs each. Leading psychology and criminology professors explained how improper interview techniques and subtle encouragement by therapists produced believable-but-false memories in the children who accused the Kellers of abuse.

Though the Court of Criminal Appeals tossed out the Kellers’ convictions as improperly influenced by false testimony from the doctor, the nine judges declined to declare them innocent.

The biggest hurdle turned out to be Travis County prosecutors, who continued to argue in court that Hampton’s piecemeal attack on the evidence lacked one important requirement: concrete proof of innocence, something like an ironclad alibi or DNA evidence.

The Kellers, unable to prove a negative and thus unable to clear their name, moved into a small house near New Braunfels and tried to eke out a living without meaningful jobs.

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