Keller, Daniel ( 2015 )


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  •                                                                                                               WR-36,232-02
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 5/26/2015 3:50:41 PM
    May 27, 2015
    Accepted 5/26/2015 4:11:37 PM
    ABEL ACOSTA
    IN THE COURT OF CRIMINAL APPEALS                                                            CLERK
    FOR THE STATE OF TEXAS
    EX PARTE
    NO. WR-36,232-2
    DANIEL KELLER
    SUGGESTION FOR RECONSIDERATION
    ON THE COURT’S OWN INITIATIVE
    TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
    COMES NOW, Keith S. Hampton, Petitioner in the above-entitled cause, and
    respectfully suggests that this Court reconsider that portion of this Court’s decision
    handed down May 20, 2015 denying relief on Applicants’ claims of innocence.1
    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.” See, e.g., Satanic Panic and Defending the West Memphis Three:
    How Cultural Differences Can Play a Major Role in Criminal Cases, 42 U. Mem. L.
    Rev. 1061 (2012); Paranoid Parents, Phantom Menaces, and the Culture of Fear,
    
    2000 Wis. L
    . Rev. 519 (2000). Texas was not spared, as this case demonstrates. See,
    1
    Rule 79.2(d) of the Texas Rules of Appellate Procedure provides that a motion for rehearing an
    order that denies relief to an 11.07 Applicant may not be filed. The Rule also says this Court “may on its
    own initiative reconsider the case.” This Court granted Applicant relief on the false evidence claim, but
    denied all other claims. The purpose of the rule appears to be addressing the scores of post-conviction writs
    wherein all relief is denied. If this interpretation is correct, then Applicant can file a motion for rehearing,
    and this Court should therefore construe this pleading to be a motion for rehearing.
    e.g., Children in the War on Crime: Texas Sex Offender Mania and the Outcasts of
    Reform, 42 S. Tex. L. Rev. 781 (2001). Such periods of profound neurosis appear
    throughout human history and will appear again in the future. This case presents an
    opportunity for this Court to recognize the impact of these episodes on the
    administration of criminal justice so that it is known in law.
    One of the central purposes of judicial analysis and the publication of those
    analyses for bench and bar is to memorialize into the body of law those events likely
    to be repeated. Judicial opinions are the primary method by which this branch of
    government ensures we know our history so that we do not doom ourselves to its
    fruitless or injurious repetition. This Court should reconsider its decision regarding
    Applicants’ innocence claims and conduct a full examination of the record in this
    cause so that future generations may benefit from this experience. If the life of the
    law is experience, as Justice Holmes so famously declared, then law is invigorated by
    a detailed review of this case. Holmes, The Common Law (1881).
    In this case, investigators and others were swept up in the hysteria of the times
    so fully that they scoured the records of at least eight airports searching for a mythical
    airplane which could land in a residential neighborhood, kidnap children from
    daycare, deposit them in Mexico where they were molested, then return them with no
    one noticing. Police equipped a helicopter with an infrared camera and flew over at
    2
    least eleven cemeteries in search of sites of human sacrifice. They searched
    everywhere and investigated everyone even remotely suspected of nefarious,
    supernatural activities. While detectives investigated other detectives, parents – with
    police participation – took four-year-old children to various cemeteries across Travis
    County and encouraged them to roam around gravesites in an effort to identify satanic
    activities.
    The facts of this case demonstrate how fully an episode of mania can envelop
    even intelligent, educated people. This recurring psychological phenomenon can
    produce devastating consequences in the criminal justice system, as it did for the
    Kellers. This Court should recognize it now and publicly identify it through a
    published opinion to inform future courts, prosecutors and lawyers. When the next
    hysteria blows through the criminal justice system, there will at least exist a
    benchmark in Texas law.
    The proof of the Kellers’ innocence is overwhelming. There is nothing in the
    trial court’s findings of fact that would preclude this Court from recognizing the
    reality of their innocence and granting relief on that basis. Central to our system of
    justice is the identification, protection and exoneration of the innocent. Rather than
    ignore the clear and convincing evidence of their innocence, this Court should
    embrace the task of a full and fair consideration of the proof in this case.
    3
    The prosecution of the Kellers began with a three-year-old girl’s “outcry.” She
    immediately recanted, then at trial refused to maintain any accusation against the
    Kellers. The conviction of the Kellers instead rested on (1) two believers in satanic
    goings-on, the girl’s mother and therapist; (2) police investigation of the magic plane
    and other-worldly mischief in Travis County cemeteries; (3) a crackpot “expert;” (4)
    patently unreliable child testimony; and (5) a ridiculous “confession” from a witness
    who had immediately and has forever renounced it. The Kellers’ convictions are
    based in precisely the sort of evidence condemned in law as unreliable and well-
    known to result in the convictions of innocent persons.
    Against this barren proof of guilt are the expert evaluations of Fran and Dan
    Keller which reveal both are normal and do not in any way fit the profile of
    pedophiles. Both have repeatedly passed polygraphs. The top experts in the world
    identify this case as the product of the panic of the times. The consideration of all
    this evidence will lead every judge on this Court to only one conclusion – Fran and
    Dan Keller are innocent.
    The child, C.C., was at the daycare for just thirteen times the summer of 1991,
    from May 8th to August 15th. Long before she ever attended Applicants’ daycare, C.C.
    was exhibiting bizarre behavior. C.C. had been biting her mother and others,
    defecating and urinating in the backyard, eating out of a bowl, and licking herself like
    4
    a cat or dog. She once tried to jump out of a moving car and repeatedly bruised
    herself by banging her body on the floor.
    The “outcry” was made to two people: her mother, Suzanne Chaviers, and a
    barely-licensed therapist, Donna David-Campbell. C.C.’s mother had a psychiatric
    history, was a believer in satanic activities, and had been seeing a chiropractor who
    also acted as her shaman. A year earlier during her divorce, she had C.C. examined
    for sexual abuse (none was found). The divorcing parent believed that the false
    accusations against the Kellers could easily have been made against him.
    The therapist was a believer as well, convinced in the truth of corpse abuse at
    cemeteries by children wearing robes. She believed the children were handcuffed or
    holding candles, conducting animal sacrifices and drinking blood. The rituals, she
    reckoned, were choreographed by adults dressed as pumpkins or werewolves. She
    stressed her belief in the reality of these events during her testimony.
    The therapist was also grossly incompetent and unethical as well. David-
    Campbell took and failed the social work exam to become a licensed therapist in
    1986. In 1987, she flunked three more times. She flunked yet again in 1989. After
    six attempts over four years, she barely passed by two points and finally obtained her
    social work license in 1990. Pursuant to state law, she could only provide therapy
    under supervision. Yet on May 21, 1991, she became C.C.’s therapist with no
    5
    supervision whatsoever, in full violation of licensing regulations. In light of her
    strong advocacy of the reality of satanic activities, this therapist not only needed
    supervision, but perhaps some genuine, competent and professional therapy herself.
    On August 15th, on the way to David-Campbell’s office, C.C. told her mother
    that Dan Keller pulled her pants down and spanked her, and that he had “poo’d and
    pee’d” on her head. She soon changed her story by the time she arrived to David-
    Campbell’s office. There, with help from David-Campbell, C.C. said that Dan Keller
    had repeatedly inserted a pen into her vagina and that he had assaulted her vagina
    with a belt on Saturday and Sunday.
    There is no medical or physical evidence of any such trauma to her vagina, and
    the attendance records revealed that she was never at the daycare on any weekend.
    When David-Campbell asked if anyone washed her hair, the girl said, “Fran.” Then
    C.C. promptly said none of it ever happened.
    C.C. was taken to Dr. Mouw for an examination that this Court now knows
    resulted in a mistaken but crucial identification of a normal hymen for a lacerated
    one. Henceforth, all investigators proceeded with the confidence that a medical
    specialist had confirmed the reality of ritual abuse and the child’s own account.
    C.C.’s claims, despite her immediate recantation, were regarded as having been
    corroborated by hard evidence.
    6
    The next day, C.C. was taken to be interviewed by Karen Knox, a social worker
    who worked at the sheriff’s office as a video specialist videotaping alleged child
    sexual abuse victims. No one knew the doctor was wrong. Knox, proceeding under
    the assumption C.C. had indeed been molested, dedicated herself to eliciting the
    details of C.C.’s assumed abuse.
    The ensuing interviewing techniques Knox employed were appalling. The
    interrogation of the children in this case is so fraught with error, they are considered
    by law enforcement to be the exemplar of how not to interview children. She took
    anatomically correct dolls, stripped them, then touched, poked and rubbed the dolls
    together for C.C. Knox helpfully named the dolls “Dan” and “Fran.”
    She and C.C.’s mother promised her candy for “correct” answers and
    interrogated her relentlessly with suggestive questions and remarks. At one point,
    Knox asked about what “Danny did to [C.C.] at the day care center,” and C.C. replied,
    “You tell me.” When C.C. tried to leave, she was restrained. The techniques
    employed in these child interviews are now universally condemned – a fact that ought
    to be recognized in a published opinion from this Court.
    Eventually, after extensive “therapy,” C.C. became a fountainhead of ornate,
    bizarre accusations. The Kellers shot Easter bunnies and made her smoke a cigarette.
    The Kellers dismembered babies at the daycare. Tigers licked the children, then they
    7
    were killed. The Kellers “had everyone take off their clothes and had a parrot that
    pecked them in the peepee.” And on and on.
    Throughout C.C.’s “therapy,” another child, B.N., was also being subjected to
    the same treatment. His parents, convinced of C.C.’s claims and that District
    Attorney Ronnie Earle was part of a satanic cult, showed him satanic symbols and
    quizzed him at home. The police and the boy’s therapist were equally inquisitive.
    After eight months of questions and suggestions, B.N. at last produced some wild
    stories of his own after he announced to his therapist, “I know how to bring in Satan.”
    B.N. became the prosecution’s star child witness, C.C. having been less than
    cooperative. From a closed-circuit screen and clutching a teddy bear that he claimed
    was alive and could talk, B.N. told how the Kellers took him to a graveyard and dug
    up a body with a cave-making machine, forced C.C. to carry bones, and sucked up
    dirt into an 8-foot tall bag. After forcing B.N. and other children to stare at the sun,
    Dan Keller abused him. B.N. also said he could count to a thousand and saw C.C.
    ride a pony 118 times.
    B.N. also produced new satanic suspects, namely, “bad sheriffs,” a man and
    woman. His claims would eventually lead to the investigation of a wide variety of
    law enforcement personnel. During a photo line-up, B.N. picked out a female
    constable, Janise White. The detective showed B.N. a photo of Deputy Roger Wade,
    8
    the detective’s collaborating investigator. B.N. said, “Her wife. It’s her husband.”
    The detective refused to believe B.N. actually meant Deputy Wade, so he reasoned
    that the child must have meant White’s ex-husband, Doug Perry, who was a friend of
    the Kellers. Under this hasty, distorted rationale, Wade was instantly cleared and
    Perry instantly a suspect.
    In an unrecorded 4½-hour interrogation by Texas Rangers, Perry ultimately
    signed a confession to a lurid orgy in which the Kellers and others sexually abused
    the children. He also claimed the orgy was recorded on film. He then retracted the
    confession at the first available opportunity.
    Perry did not spontaneously or independently recount the details of his
    confession. Instead, he relied on police reports as a guide for his factual assertions
    during his interrogation. Perry said nothing about ritual abuse in the course of his
    false confession. No child ever mentioned or identified Perry. His story does not
    match any particular story of any child. Nevertheless, Perry was forced under threat
    of contempt to read his confession at the Kellers’ trial as proof of their guilt. He did,
    under protest and with his sworn assertions of their innocence and the falsity of his
    confession.
    Finally, self-professed ritual abuse “expert” Randy Noblitt confirmed that C.C.
    was in fact the victim of abuse. Noblitt has long enlisted himself in the exposure of
    9
    an alien Jewish/demonic interplanetary plot to conduct thousands of human sacrifices
    and enslave humanity through various governmental agencies. If in doubt, the Court
    may look to the other crackerjack “expert” speakers Noblitt still sponsors at his yearly
    seminar. They include a former warlock; an expert on the vast, secret child-slave
    auctions held in Las Vegas, Nevada; and a “beta sex slave” who was forced to have
    sex with former presidents Jimmy Carter, Ronald Reagan, George H.W. Bush and
    Gerald Ford. The judges of this Court can also purchase Noblitt’s book, published
    shortly after his outstanding performance in the Kellers’ trial. It sells today for
    $32.50 on Amazon.com.
    No one saw anything at all regarding the Kellers’ supposedly abusive daycare
    – not the landlord, the next-door neighbor, none of the parents. There was no trace
    of any evidence of any criminality, no Polaroid camera, no sex videos, no kidnapping
    sites, no ritual robes, no blood, no mutilated animals or babies, no invisible suburbia-
    landing planes. Recent DNA testing on the girl’s clothes revealed nothing. All that
    remains as “proof” are the fantastical stories – woven not so much by children as
    through them, originating from adults swept up in hysteria. The stories are not child
    fantasies. The imagery is the stuff of adult anxieties.
    Since their convictions, Fran and Dan have undertaken multiple polygraph
    examinations and passed them all. The polygraph evidence in this case was
    10
    introduced without objection for the limited purpose of establishing a statistical
    probability regarding their truthfulness. The likelihood the exams were passed
    because the Kellers are innocent is over 90%. If Doug Perry’s passed polygraphs are
    taken into account, the statistic grows to 98%. By any measure, this evidence is strong
    statistical proof of their innocence, as Petitioner has detailed in this record.
    The psychological examinations confirm their innocence. (Reports of Maria
    Mollett and Matthew Ferrara). Dan and Fran are normal people and neither fits the
    profile of a pedophile whatsoever. These experts are the same people the State relies
    upon to determine the release and supervision of identified “sex offenders.” These
    experts independently cleared the Kellers without reservation.
    The top experts in the world have weighed in on this case, from the University
    of Cambridge, Cornell University, City University, London, Maastricht University,
    The Netherlands, Johns Hopkins University School of Medicine, University of
    Leicester and the National Institute of Child Health and Human Development –
    ultimately eighteen very well credentialed experts in all. Their collective conclusion:
    the convictions of Fran and Dan Keller were “clearly a manifestation of the nation-
    wide Abuse Panic of the 1980s and 1990s.” This Court should recognize this
    expertise and their informed conclusions.
    A review of the evidence in this case will leave no one on this Court with
    11
    anything less than a conviction of their innocence. Their innocence claims demand
    review because our criminal justice system makes a fundamental assurance that it will
    not tolerate the conviction or punishment of an innocent person:
    [I]f the criminal justice system—even when its procedures were fairly
    followed—reaches a patently inaccurate result which has caused an
    innocent person to be wrongly imprisoned for a crime he did not
    commit, the judicial system has an obligation to set things straight. Our
    criminal justice system makes two promises to its citizens: a
    fundamentally fair trial and an accurate result. If either of those two
    promises are not met, the criminal justice system itself falls into
    disrepute and will eventually be disregarded.
    Ex parte Thompson, 
    153 S.W.3d 416
    , 421 (Tex.Crim.App. 2005) (Cochran. J,
    concurring). Judge Johnson’s concurring opinion reflects why this Court still has
    promises to keep. Ex parte Fran Keller, No. WR-36,864-2, delivered May 20, 2015)
    (Johnson, J., concurring).
    When a convicted person asserts the evidence was insufficient to support a
    verdict of guilt, the reviewing court is bound to address that question in full. Hooker
    v. State, 
    621 S.W.2d 597
    (Tex.Crim.App. 1981). Yet when that same person insists
    he or she is actually innocent, such a claim may be summarily disposed with nothing
    more than a noun and a verb. It does not matter whether the trial court found the
    person “unquestionably innocent” or not. See, e.g., Ex parte Castillo, No. AP-75,460
    (Tex.Crim.App., delivered June 21, 2006) (unpublished) (granting relief only on
    12
    Brady violation, wholly ignoring trial court’s finding that applicant was
    “unquestionably innocent”). Under this Court’s jurisprudence, fairly convicted guilty
    people are entitled to greater due process than people who have proven themselves
    innocent. The guilty receive full judicial review of all the evidence in its totality,
    while the innocent get nothing more than the sort of page-and-a-half shrug this Court
    gave the Kellers in this case. Ex parte 
    Castillo, supra
    (three short paragraphs, one
    page, innocence finding ignored). Petitioner suggests this Court end this indefensible
    anomaly by addressing the Kellers’ innocence claims with at least the same vigor and
    thoroughness as sufficiency claims brought by people who have been fairly
    determined to be guilty.
    The Kellers deserve more than an unpublished per curiam opinion which
    merely recognizes the obvious unfairness of the proceedings against them. They
    deserve to have their innocence vindicated with the finality and fullness only the
    judges of this Court can in good conscience provide. The law needs a better
    resolution than this Court’s current judgment. Justice has yet to be served.
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    Respectfully Submitted,
    KEITH S. HAMPTON
    Attorney at Law
    1103 Nueces Street
    Austin, Texas 78701
    keithshampton@gmail.com
    TEL: (512) 476-8484
    FAX #: (512) 477-3580
    CELL: (512) 762-6170
    SBN: 08873230
    CERTIFICATE OF SERVICE: I, Keith S. Hampton, hereby certify that a true and
    correct copy of the foregoing Suggestion for Reconsideration on the Court’s Own
    Initiative was delivered electronically to the Travis County District Attorney’s Office
    to Scott.Taliaferro@traviscountytx.gov on this day, May 28, 2014.
    KEITH S. HAMPTON
    14
    

Document Info

Docket Number: WR-36,232-02

Filed Date: 5/27/2015

Precedential Status: Precedential

Modified Date: 4/17/2021