Habeas writ challenges infamous Austin 'ritual abuse' case

The Austin Chronicle and the Austin Statesman both have coverage of a substantive habeas appeal filed by Austin attorney Keith Hampton on behalf of Fran Keller, who along with her husband was convicted two decades ago of ritual sexual abuse of children at a daycare they operated. From the Chronicle:

the Kellers were among hundreds of daycare worker across the country who in the Eighties and early Nineties were accused of being part of “satanic cults” that abused children placed in daycare. The most notorious case was that involving McMartin Preschool in California where daycare workers were charged with hundreds of counts of abuse in a criminal case that lasted more than a decade; the McMartin defendants were finally cleared of any wrongdoing.

Although Christy [Chaviers, who made the initial outcry] ultimately testified in court that nothing bad ever happened to her at the Kellers, the state had several other pieces of evidence upon which to make its case: the testimony of a young emergency room doctor who examined Christy and opined that lacerations to her hymen appeared consistent with sexual abuse; testimony from Austin Police who said they'd used a helicopter armed with an infrared device to determine that graves in a small private cemetery had been disturbed – consistent with stories the children told about rituals the Kellers would perform there; and the opinion of Randy Noblitt, a Dallas psychologist with an alleged expertise in ritual abuse.

According to an 108-page writ filed today by veteran Austin defense attorney Keith Hampton, those key pieces of evidence have now been discredited. Keller's wrongful conviction was based on "medical observations now repudiated, a recanting witnesses' false confession, child fantasies, a quack 'expert' in imaginary satanic ritual abuse, false evidence from the police … the suppression of exculpatory evidence, and an investigation virtually certain to result in false allegations of abuse by children," reads the appeal memorandum. Indeed, the faulty medical evidence – based on science that has evolved since 1991, when the alleged crime took place – and evidence that Austin Police withheld, not only from the defense but also from prosecutors, key evidence related to the graveyard, are issues that were first raised by the Chronicle in a reinvestigation of the Keller case, "Believing the Children," published on March 27, 2009.

The "expert" who testified regarding ritual sexual abuse turned out to be something of a nutjob, as his later writings and advocacy on the subject attest. From the Statesman:

The appeal also took strong exception to the expert testimony regarding ritual abuse by Noblitt, a Dallas-area psychologist now living in California whose unreliable opinions deprived Fran Keller of a fair trial, Hampton said.

At the Kellers’ 1992 trial, defense lawyers argued that the children’s tales were too far-fetched to be believed, but Noblitt testified that bizarre rituals can be used by sex abusers to intimidate and control their victims.

The appeal accused Noblitt of parlaying his testimony into a business opportunity, giving lectures and writing a book on the evils of ritual abuse, and pointed to a Noblitt-sponsored 1995 conference as providing an eye-opening look into his world view. The conference included speakers who discussed the FBI’s cover-up of a satanic cult in Nebraska that had White House ties, the existence of more than 500 satanic cults conducting eight sacrificial murders a year in New York City, and the revelation that then-President Bill Clinton was the anti-Christ, the appeal said.

Meanwhile, the ER doctor whose testimony most directly evinced sexual abuse now says he was wrong, again from the Chronicle:

[Dr. Michael] Mouw told us in 2009 that he was wrong, and that he learned later that what he saw was likely not an injury. In an affidavit filed with Keller's writ, Mouw elaborates on why he believed then that Christy had been abused, and why he does not now believe that she was. "Years after the trial, I attended a medical seminar which included a slide presentation of hymens with normal variants," Mouw wrote. "One slide of a normal hymen was so similar to what I had observed when I examined Christy, I realized I had mistakenly identified normal discontinuity at those locations as lacerations. This was new information to me. While my testimony was based on my good-faith belief at that time, I now realize my conclusion is not scientifically or medically valid, and that I was mistaken."

Mouw's about-face, based on medical advancements, is key to Keller's appeal. The Court of Criminal Appeals has recently decided at least two cases that hinge on evolved medical opinions. In one, the court ruled that a mere change of heart by a medical professional was not enough to trigger appellate relief. But in the Cathy Lynn Henderson case, also from Travis County, the court has granted Henderson a new trial, based on the idea that "new" science demonstrated that the head injury suffered by a three-month-old left in her care could easily have been an accident. 

The writ also alleges a Brady violation based on police testimony that several graves had been disturbed in a small cemetery where they alleged some of the abuse had occurred. But they failed to reveal to either prosecutors or the jury that the cemetery's caretaker offered a "perfectly innocent explanation for the 'disturbed' grave sites." "Moreover, because police allowed the state to put on evidence that 'acted at trial as official affirmation of the child fantasies' also amounts to the 'use of false or misleading evidence to convict,' a violation of Keller's due process rights," according to the writ.

Hampton argued that "The wrongful imprisonment of Fran Keller is the result of forces which arise only in somewhat unique social and psychological circumstances. A 21st century court ought to be able to recognize a 20th century witch-hunt, and render justice accordingly.""

Grits can vividly remember the breathless, circus-like media coverage of this case, which did indeed lead to a witch hunt atmosphere. Gary Cartwright of Texas Monthly was the first journalist to comprehensively question the Kellers' convictions, reporting in 1994 that "Much of what the children said – or, more accurately, what the parents reported they said – is either demonstrably false or inherently unbelievable." Though he could not know at the time of Noblitt's quackery, that the ER doctor would recant, nor of the exculpatory evidence about the gravesites allegedly withheld from the defense, Cartwright showed that the children's testimony was at a minimum fanciful and unreliable, encouraged by therapists and police touting dubious claims about the kids (one therapist insisted the central witness in the case had eight personalities) who had personal and professional stakes in promoting the meme of Satanic ritual abuse.

Concluded Cartwright, "What happened at Fran’s Day Care Center was a tragedy. If the Kellers did even a fraction of what is alleged, they got what they deserved. If they didn't, then the tragedy is compounded beyond measure, because the children believe that the stories of humiliation and torture that they were encouraged to tell are real and also because innocent people are in prison, their lives and the lives of their families wrecked. Stories of unimaginable horrors have been told and repeated and refined so many times by parents, therapists, and law enforcement authorities – told with such passion and conviction that they are permanently planted in these children's minds. In that respect, some form of ritual abuse obviously took place."

Knowing what we do now about the evidence Cartwright didn't dispute - particularly the revised medical testimony and alleged Brady violation - it's hard to imagine a jury would convict today, but that doesn't ensure the Kellers will get relief from the Court of Criminal Appeals. The court's recent rulings on whether erroneous scientific testimony justifies habeas relief have been all over the map, however the additional claims in the writ may well be enough to tip the scale in the Kellers' favor. As Cartwright suggested nearly two decades ago, in hindsight the main "ritual abuse" in this episode appears to have been  perpetrated by the state and its agents.