Learning From Our Mistakes

Fran and Dan Keller were prosecuted wrongly and unjustly. It’s long past time for their complete exoneration.


“Sometimes, it feels like we’re still in prison.”

In late December, Fran and Dan Keller were talking to a reporter in their small rent-house near New Braunfels, and quietly describing how it feels to have been released from prison after 21 years, yet still have so little freedom of movement or circumstance, or even quality of life. Their 1992 conviction on multiple counts of “sexual assault of a minor” – in the now notorious Fran’s Day Care case – has effectively been overturned by a May 2015 Court of Criminal Appeals ruling “granting relief” to the Kellers on a single question of retracted medical testimony. But the ruling was not accompanied by actual exoneration from the allegedly heinous crimes.

Only a single appeals court judge – Cheryl Johnson – was willing to admit no crime had in fact occurred. “This was a witch hunt from the beginning,” wrote Johnson, in her opinion concurring with the opaque ruling of the full court. Johnson would have granted relief on all the Kellers’ claims, and would have acknowledged that the entire prosecution had been an egregious folly.

The limited ruling, while welcome in itself, left the Kellers in a legal limbo – permanently accused but not cleared, and never to be tried. Their felony convictions have been “vacated,” but they’re technically on bonded status, and their daily lives are substantially restricted. “We still have a felony on us,” Fran said, because the absence of an explicit exoneration leaves her and Dan at the mercy of any online background search. Without a clearing of their names, not only can they not live openly without fear of disgrace or retribution, they can’t readily find employment adequate to their needs, any rental process is a minefield, and they can’t hope to buy a home of their own. For fear of another accusation, they avoid being in the company of their 11 grandchildren or 24 great-grandchildren outside the presence of another adult. Even their lives prior to their arrest do not fully belong to them: Fran reports that family photo albums and other keepsakes seized by police during the original investigation – which provided no evidence of any wrongdoing – have never been returned.

“It’s as though we’re still considered criminals,” said Dan. “We didn’t do anything. We still respect the law. And we’re still being punished. Sometimes it feels like we’re still locked up.”

In the absence of an exoneration from the court, there remains one person who can act upon the complete absence of evidence against the Kellers, and can publicly acknowledge once and for all that the crimes the Kellers were accused and convicted of did not happen.

“It’s me,” said Travis County District Attor­ney Rosemary Lehmberg in January. But while sympathetic to the Kellers’ strained circumstances – when it became clear that the original prosecution had collapsed, she agreed to their release from prison – the district attorney told the Chronicle she found herself still unable to “find a path to innocence.” In previous local exonerations, Lehmberg recalled, DNA evidence eventually led away from the person convicted. In this case, the absence of any physical evidence that a crime had actually been committed has had a perverse result: It has thus far prevented Lehmberg from further action.

“I have never done an exoneration where I wasn’t sure,” Lehmberg said. “I must be, myself, assured either that this person didn’t do it, somebody else did, or, that person is actually innocent. I’m not gonna tell you I don’t still think about it.”

In late February, the district attorney reiterated her position. “I’ve really, really given it a lot of thought,” she insisted. “And I just don’t see a way to agree to actual innocence for them.”

No Happy Ending

Although the court’s ruling and the prosecutor’s decision not to retry the case have removed the Kellers’ immediate legal jeopardy, after so many years in prison (Fran is now 66, Dan is 74), their financial circumstances are quite difficult. They live on their limited Social Security payments – after more than two decades out of the workforce – and support from family, all of whom stood by them from the beginning of their ordeal, firmly convinced that they had done nothing wrong. They don’t know how permanent their current home is – their landlord is an elderly relative – and without it, they would likely be imposing (as they see it) on their children. (In recent weeks, Fran has wondered uncertainly if she and Dan should try to create some sort of personal fundraising effort.)

In justice, the Kellers should be eligible for financial compensation from the state of Texas, for having been wrongly incarcerated for 21 years (the family counts 23, dating from their 1992 conviction through their continuing legal purgatory). No longer convicted of any crime, they remain under a permanent cloud of accusation, required to somehow further demonstrate their innocence – of crimes that never happened.

“Everyone thinks this story had a happy ending,” says Keith Hampton. “But it still hasn’t ended, and it isn’t happy.”

Hampton is the Kellers’ (pro bono) attorney, who successfully represented them before the lower and appeals courts and finally persuaded the judicial system to grudgingly, incompletely acknowledge that incarcerating two innocent people for decades was unjust. In the course of that defense, which began in 2012, Hampton has become an encyclopedic authority on the crimes that never happened at Fran’s Oak Hill Day Care center. As he wrote in an unsuccessful request that the Court of Appeals reconsider its limited 2015 ruling, “This case has a legal, historic significance. Applicants’ convictions were the clear product of a period of hysteria now identified as the ‘Daycare Panic’ or the ‘Satanic Panic.'” The most notorious relic of that period was the McMartin Preschool case in California, which involved more children, more alleged abusers, and equally fantastic tales. But the Fran’s Day Care case is Travis County’s own miniature McMartin case, an unremoved stain on our local justice system, with similarly devastating effects on the accused – the Kellers and others – as well as on the alleged child victims and their families.

Hampton’s various briefs recount the incredible, absurd lengths investigators pursued in trying to confirm elaborate, impossible tales imagined by young children, under constant pressure from their credulous parents and investigators: ritual murders of children and animals, shark and tiger attacks, secret burials in various cemeteries, multiplying accusations against randomly selected adults, and so on. John­son, aptly citing the 17th-century Salem witch trials as historical precedent for the Keller investigation and prosecution, recounted the utterly spurious claims of two children who had been most persistently suborned by adults into telling frankly unbelievable tales, and wrote: “In spite of such fantastical claims, which should have produced total incredulity in the police investigators and prosecutors, charges were filed.”

The whole story was told here by former Chronicle reporter Jordan Smith, starting with her March 27, 2009, feature, “Believing the Children,” and concluding with her December 6, 2013, account of their release, “Freedom for the Kellers.” By the time Smith’s first article was published, the Kellers had been imprisoned 17 years.

In 1992, after months of elaborate and futile investigations and pressurized interviews, three children had claimed Fran, Dan, and several other adults had abused them – including several police officers and various neighbors randomly implicated by the children or their parents. (Some were subsequently sued in a civil action that came to nothing.)

Although the children’s tales, if remotely accurate, should have been able to be confirmed by voluminous physical evidence, all the prosecution provided was testimony from a young emergency doctor, Michael Mouw, who said he had examined one child for signs of sexual abuse, and that small deformities on her hymen might have been caused by abuse. In the absence of any other physical evidence, some jurors later said they were persuaded by Mouw’s testimony.