That [emergency room Dr. Michael] Mouw provided false medical testimony for the state at the 1992 trial was among the claims included in an exhaustive appeal filed on Fran Keller's behalf in January by Austin defense attorney Keith Hampton. A hearing on the issue was held in district court in August, leading Travis County District Attorney Rosemary Lehmberg earlier this month to agree with Hampton that Keller received an unfair trial, Hampton said. (An appeal raising the same claims was filed last week for Dan, and the agreed findings related to Mouw's testimony are also applicable to Dan.) The agreed findings have not yet been officially filed, Hampton said, because he was waiting for Lehmberg to sign a second copy that will be filed under Dan's name. In short, the state has agreed that the medical testimony presented at the Kellers' trial was false, was material, and likely affected the outcome of the Kellers' trial. As such, its inclusion violated their right to due process. In a press release late Tuesday afternoon, Lehmberg said that she agreed to the relief because of the "crucial nature" of Mouw's testimony, and the "reasonable likelihood that his false testimony affected the judgment of the jury and violated Frances Keller's right to a fair trial."As in the case of the San Antonio Four, prosecutors won't agree to Keller's actual innocence claim but have agreed to a new trial which, assuming the Court of Criminal Appeals signs off on her writ, will almost certainly never occur. (It's a rare prosecutor indeed who's willing to admit mistakes in such cases.) The main witness in the case, who was three at the time she was allegedly abused and four when the Kellers were convicted, was not a very credible witness and it was the forensic testimony that secured the conviction. At first, she accused the Kellers only of spanking her. But then, reported Smith:
The fact that Lehmberg and Hampton have agreed to that finding, and to the fact that the Kellers conviction should be overturned, triggers a provision of state law that allows a district judge to grant a personal bond to release them from prison while the appeal continues to move through the process. The agreed findings will be forwarded to the Court of Criminal Appeals for final approval; once that happens, the case will be kicked back to Lehmberg to decide whether to retry the case.
With a bit of pressing, first by her mother and then by therapist Donna David Campbell, [those] initial allegation soon morphed, first into an allegation of sexual abuse and then, by the fall, into far more fantastic allegations – including that the Kellers took [her] and other children on plane rides to Mexico where they were abused by various individuals, that Fran cut off the arm of a gorilla at Zilker Park, that the Kellers performed a satanic bone-replacing ritual on one child, and that the Kellers forced the children to watch them sacrifice babies and small animals. Ultimately, Campbell concluded that [she] was a victim of "ritual abuse."No way Rosemary Lehmberg will take the case back to court based solely on that sort of garbage testimony. Noted Smith, "The Kellers were among hundreds of child-care workers across the nation who, in the Eighties and Nineties, were accused of being part of a network of satan worshippers who abused children taken to daycare."
Keller's husband, "Dan, who will turn 72 in prison on Friday, is slated to be returned to Travis County and finally released in early December," Smith reported.
MORE: From the Austin Statesman. AND MORE: From Texas Monthly's Michael Hall who credited Jordan Smith for reporting that "led directly to yesterday's release." He also added this observation:
Another similarity between the San Antonio [Four] and Austin cases is that both are being driven by changing science—the medical science of the hymen. The only physical evidence in the San Antonio Four case was testimony from a pediatrician named Nancy Kellogg, who said that a 2-3mm white “scar” (about the width of a quarter) on the hymen of one of the young girls making sex-abuse allegations against the four defendants could have been evidence of sexual assault. Now we know better. What about the dozens of other inmates in Texas convicted of child-sex abuse and sent away because of testimony that scars or lacerations on hymens were evidence of abuse? It’s safe to say we should expect to see more writs soon based on changing science.