Judge pondering habeas writ based on erroneous science testimony

Speaking of cognitive bias in forensic examinations, Jordan Smith at the Austin Chronicle this week published a story ("Can Keller conviction stand without physical evidence," Aug. 27) on the locally infamous case of Fran and Dan Keller, who were convicted in the early '90s of sexually assaulting children at a daycare they ran in Oak Hill. A habeas corpus writ filed in January on Fran's behalf disputed a key forensic examination of one of the children by an emergency room doctor who diagnosed a girl's normal hymen as having been damaged. Jordan's earlier reporting on the case dug up new information that helped spur the current writ application. KUT also had coverage of the hearing.

Paraphrasing the doctor's recantation in court, Smith wrote that he came to the case in "good faith," but with "an institutional bias toward nabbing bad guys" and ignorance of the basic science about which he was testifying. His testimony was the only physical evidence supporting the conviction, which otherwise was based on sometimes fanciful testimony by children and allegations by a therapist of satanic ritual abuse. Back in 1994, Gary Cartwright's Texas Monthly feature on the case concluded, "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."

Keller's writ is pending before retired District Judge Wilford Flowers, who heard the original case.