Will Dan and Fran Keller be exonerated?



Austin day care owners Dan and Fran Keller spent more than 22 years in prison after three young children accused them of dismembering babies, torturing pets, desecrating corpses, videotaping orgies and serving blood-laced Kool-Aid in satanic rituals so ghastly, their names became synonymous with evil.

It was the early 1990s, when a cottage industry of therapists, authors and investigators argued convincingly — and, in hindsight, absurdly — that a national network of secretive cults was preying upon day care children for sex and other horrors.

Despite a vigorous investigation in the Keller case, at least four law enforcement agencies found no proof of satanic activity. Even so, Travis County prosecutors presented enough other evidence to convict the Kellers of sexually assaulting a 3-year-old girl in their care. Both were sentenced to 48-year prison terms.

Prison, Fran Keller said, was “true hell” for two people convicted of child sex crimes.

“We were bullied and assaulted pretty much the entire time,” she told the American-Statesman. “Other inmates, they’d scream at you while assaulting you, yelling, ‘You want to do this to children? Well, we’ll do it to you.’”

Denied parole three times, the Kellers won early release last year when the criminal case against them collapsed. The only physical evidence of sexual assault was found to be a mistake made by a young doctor with little experience examining children for abuse, and Travis County prosecutors made two important concessions:

• They agreed to free the Kellers from prison on a signature bond.

• They agreed to ask the courts to throw out their convictions because the doctor’s mistake denied them a fair trial in 1992. That request is still pending.

But for the Kellers, freedom isn’t enough. They want the courts to declare them innocent of crimes that had stunned and repulsed Austin.

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

Innocence, however, is one concession prosecutors are unwilling to make, and exoneration will not come easy.

Defense lawyer Keith Hampton spent three years carefully amassing volumes of information attacking every aspect of the convictions, filing court documents arguing that the Kellers were convicted by the combined efforts of inept therapists, gullible police, a “charlatan” posing as an expert in satanic ritual abuse 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, working for free, also got creative.

He had mental health professionals examine the Kellers for sex-offender tendencies; none were found. He had them take two polygraphs each; all were passed. Leading psychology and criminology professors explained how improper interview techniques and subtle encouragement by therapists likely produced believable but false memories in the children who accused the Kellers of abuse.

The totality of new evidence, Hampton argues, completely undermines the case against the Kellers and leads to one inescapable conclusion: “Dan and Fran Keller are innocent,” he said. “None of these allegations are true.”

Travis County prosecutors, however, oppose a finding of innocence, saying Hampton’s piecemeal attack on the evidence lacks one important requirement — concrete proof of innocence.

To overcome a jury finding of guilt, the courts require new evidence that unquestionably establishes innocence — something like an ironclad alibi or DNA proof, Assistant District Attorney Scott Taliaferro said.

“It just doesn’t appear to us that the requirements have been satisfied,” he said.

Asked if the district attorney’s office believes the Kellers are guilty, Taliaferro replied, “That’s not the question here. Our responsibility is to make sure the law is properly applied, and, under the applicable standards, we are not satisfied that they have established actual innocence under the law.”

That standard seems unfair to Fran Keller, who said there is no way to conclusively prove a negative.

“It’s so hard to prove you’re innocent when there was never a crime,” she said.

Questionable accounts

The Kellers operated a day care out of their three-bedroom Oak Hill home for about two years, catering to a mix of daily drop-offs and parents who used the center as needed.

A typical day would have a half-dozen children ranging from infants to about 9 years old.

Trouble began Aug. 15, 1991, when a 3-year-old girl — a sporadic visitor who had been to the day care 13 times in the previous four months — told her mother that Dan Keller had hurt her. The mother and daughter were on their way to a scheduled appointment with the girl’s therapist, who drew out details that included Keller defecating on her head and sexually assaulting her with a pen.

Word of the accusations spread among families who used the day care, and within weeks a second child made similar accusations.

The children’s recollections quickly expanded to include orgies with robed adults and eerie graveyard ceremonies in which bodies were unearthed and freshly murdered babies and sacrificed animals were buried. The children also said they were taken on several trips via private plane, including a flight to Mexico, where they were sexually abused by soldiers, then returned to Austin in time to be picked up from day care.

In court filings, Hampton argued that the accusations against the Kellers were built on a shaky foundation:

• The therapist who first interviewed the 3-year-old girl was a “true believer” in satanic ritual abuse who had failed six consecutive tests for a Texas social work certification before barely passing her seventh exam. In addition to transferring her beliefs to the child, Hampton argued, the therapist also was treating the second child who accused the Kellers — a boy who “unsurprisingly” recalled being molested after initially denying any problems, he said.

• The third child who accused the Kellers, a 5-year-old boy, also denied being abused before relenting after eight months of repetitive questioning about whether the Kellers had hurt him, Hampton argued.

• Taped interviews of the 3-year-old girl at the Travis County sheriff’s office were a lesson in how not to question children, said an affidavit by Vivian Lewis Heine, who specialized in assessing and treating crime victims. Interviewers suggested answers, named anatomically correct dolls “Dan” and “Fran,” undressed and suggestively rubbed the dolls to elicit responses and asked improper leading questions such as, “Tell me how Danny hurt you,” said Heine, who added that she uses excerpts of the tapes when lecturing about common interviewing mistakes.

• Day care children who reported no problems also were ignored, even though the accusations of others placed many of them in cemeteries, on planes or in the Keller home for orgies or other forms of abuse, Hampton said.

Instead of raising questions, the ever-more-fantastic accusations fueled an investigation run amok, he said.

Police visited eight Central Texas airports and 11 cemeteries looking for clues to corroborate the children’s accounts, Hampton said. Denied permission to dig up graves, Austin officers searched for suspicious cemetery hot spots using a helicopter whose infrared camera could read heat from decomposing bodies.

“At some point the light bulb should have gone off,” Hampton said. “Magic planes? Cemetery ceremonies in broad daylight? Somebody should have realized that this is crazy.”

Problematic evidence

Two trial witnesses cemented the Kellers’ convictions.

And, according to Taliaferro with the Travis County district attorney’s office, both continue to stand in the way of the Kellers’ bid for exoneration.

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, testified that he found two tears and a fissure in the girl’s hymen. It was the only physical evidence of sexual abuse in the case.

Early last year, however, 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. He also said the fissure he identified should more accurately be described as a “defect in the skin.”

“I now realize my conclusion is not scientifically or medically valid, and that I was mistaken,” he said in an affidavit.

The fissure became a focus of an August 2013 hearing on the Kellers’ bid to be freed from prison. Mouw testified that his initial conclusion attributing the fissure to abuse was “mistaken and inaccurate,” but, under questioning by Taliaferro, he also acknowledged that such a fissure could have been caused by sexual abuse.

Though Hampton accused the prosecutor of splitting verbal hairs, Taliaferro said Mouw’s admission meant the doctor “didn’t change the entirety of his trial opinion. … In this case, there remains physical evidence of sexual abuse — the third injury he observed.”

The second piece of problematic evidence is a confession by Keller friend Douglas Wayne Perry, who after a 4½-hour interrogation provided Texas Rangers with a chilling description of an orgy he joined with the Kellers and children from the day care. Perry immediately retracted the confession, but he was forced by prosecutors to read it aloud at the Kellers’ trial.

Perry and his then-wife, Travis County Deputy Constable Janise White, socialized with the Kellers on most weekends — drawing the interest of investigators when one of the children said police had been involved in their abuse.

Pressured by investigators who claimed they had witnesses and videotapes confirming his guilt, Perry said his wife and another constable also took part in the orgy. Afterward, he said he embellished his confession with details from a police report that his wife had brought home.

Hampton said the confession is an unreliable account supplied by a weak individual who tried to save himself at the expense of others. In addition, Perry — like the Kellers — recently passed two polygraphs; the odds of three people deceiving six polygraphs on the same subject are astronomically low, Hampton said.

But Taliaferro noted that Perry also pleaded guilty to indecency with a child, receiving probation that was revoked when he failed to register as a sex offender. He served 10 years in prison.

But if prosecutors are relying on Perry’s confession to establish the Kellers’ guilt, they apparently had less confidence in 1993, when they dropped the child abuse charges against White and the other constable — the only other adults implicated in the confession.

Conservative court

The Kellers’ innocence claim will be decided by the Texas Court of Criminal Appeals, where a core of conservative judges typically takes a skeptical view toward overturning jury verdicts.

The appeals court will be guided by the recommendations of Senior District Judge Wilford Flowers, who presided over the Kellers’ 1992 trial and their recent appeals — and who has already twice ruled that the Kellers had failed to prove their innocence.

Hampton was able to get both recommendations rescinded because he hadn’t finished presenting new evidence, taking the risky course of potentially antagonizing Flowers by twice pressing to have the judge removed from the case, arguing that his haste suggested a bias against the Kellers. Visiting judges denied both requests.

At a final hearing on the Kellers’ innocence claim last week, Hampton urged Flowers to consider the totality of evidence, including unreliable outcries of abuse, an “unqualified” therapist, the lack of physical evidence, an investigation influenced by satanic fear-mongering, six passed polygraphs and incredible stories of ritualistic abuse that were never witnessed by neighbors or parents who frequently dropped by the day care unannounced.

“If there’s something that’s got you convinced you’re looking at two guilty people, I cannot wait to hear it, because I will find a way to remedy it,” Hampton told the judge.

Giving no indication on how he will rule, Flowers promised to provide his findings to Hampton and Taliaferro on Monday to give both time to draft rebuttals or responses, which will be due at the appeals court on Dec. 10.

The Court of Criminal Appeals has no deadline to issue its ruling.



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