Unfair struggle to prove innocence

Dan and Fran Keller were released from prison almost exactly a year ago, 21 years after being convicted of sexually abusing a 3-year-old girl who attended the day care they ran in Southeast Austin.

For a year, the Kellers have had their freedom. What they don’t yet have — and might puzzlingly never get — is their innocence.

Even though Travis County prosecutors agreed to release the Kellers from prison in late 2013 and have recommended that their convictions be thrown out because mistaken testimony denied them a fair trial — the request to overturn their convictions is pending before the Texas Court of Criminal Appeals — they oppose exonerating the Kellers. The reason? Key evidence used at trial may no longer prove the couple’s guilt, but the couple can’t provide absolute proof they are innocent, either.

As we all know, suspects are presumed innocent until prosecutors prove them guilty. Yet the presumption of innocence does not return to suspects when prosecutors acknowledge years later that they weren’t fairly convicted. Exoneration must come on a separate track and it’s up to the suspects to prove their ironclad innocence — or, as Fran Keller told the American-Statesman’s Chuck Lindell, to conclusively prove a negative. It’s nearly impossible to do.

The issue of whether to declare the Kellers innocent recently was before Senior District Judge Wilford Flowers. On Monday, Flowers said the Kellers had failed to provide proof of their innocence. The Kellers’ attempt to clear their name, like the request to overturn their conviction, is now before the Court of Criminal Appeals.

The case against the Kellers began in August 1991 when a 3-year-old girl told her mother that Dan Keller had hurt her. The girl’s accusation launched a criminal investigation that soon also involved two boys accusing the Kellers of sexual abuse. Under leading and suggestive questioning by therapists, police and their parents, the children told tales of orgies and murder, of babies dismembered and pets tortured, of corpses dug up and desecrated. There were stories of satanic rituals and day flights to Mexico, where soldiers abused children in the Kellers’ care.

Several police agencies investigated the claims, searching for evidence, scouring flight records and surveying cemeteries. By the time the Kellers were tried together in November 1992, however, the only physical evidence against them came from Dr. Michael Mouw, an emergency room physician who examined the 3-year-old girl the night she first accused Dan Keller of abuse. Mouw testified that he found two tears and a fissure in the girl’s hymen consistent with sexual abuse. The Kellers were convicted and sentenced to 48 years in prison.

But Mouw had minimal training in pediatric sexual abuse. He since has recanted his testimony. What he had observed in 1991, he says he later learned, was a normal variation in pediatric hymens.

Two Travis County constables, Janise White and Raul Quintero, and White’s ex-husband, Douglas Perry, also were charged in the Keller case. Under interrogation by Texas Rangers, Perry confessed that he, White, Quintero and the Kellers had engaged in an orgy with several children. He soon retracted his confession. Nonetheless, prosecutors forced him to read it from the stand during the Kellers’ trial.

Prosecutors dropped charges against White and Quintero, citing lack of evidence. Perry’s confession haunted him, however. He initially was charged with aggravated sexual assault but pleaded guilty to a lesser charge of indecency with a child and was sentenced to 10 years’ probation. In 2003, he was sentenced to 10 years in prison for failing to register as a sex offender – a violation of his probation.

The case against the Kellers was one of numerous similar cases of alleged ritual abuse of children that captured national attention in the 1980s and early 1990s. The most infamous of these cases was the McMartin preschool case in California, which began in 1983, developed to involve dozens of children telling wild stories of bestiality, sodomy, witches and secret tunnels, and ended with all charges dropped in 1990, a year before the Kellers were accused of abusing children.

Thus there was an ample, well-publicized reason for Travis County prosecutors and investigators to be skeptical of the things they were being told the Kellers had done — as if one needed a reason to be skeptical of such bizarre allegations. Yes, authorities were obligated to investigate an allegation of child abuse, but absurdly and shamefully, they failed to heed the cautionary tale the McMartin case represented.

They fell credulously for the incredible. Twenty-two years later, with no substantial evidence against them, the Kellers continue to pay the price.

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