Texas May Finally Get an Exoneration Commission. Now if the CCA Would Just Exonerate Innocent People

Rep. Ruth Jones McClendon's persistence seems to have finally paid off this session. In addition to finally getting her long-stalled needle-exchange bill through the House, the San Antonio Democrat appears to have finally won another hard-fought legislative battle.

For more than a decade, McClendon has filed a bill to create a state commission studying how and why innocent Texans are wrongly convicted and thrown in prison. After years of staunch opposition from prosecutors — and, most notably, from Houston's own Sen. Joan Huffman, a former prosecutor and district judge whose diatribe against McClendon's bill last session earned her a spot on Texas Monthly's list of “Worst Legislators” — the Texas Senate unanimously approved the measure this week. The bill, which would create the Timothy Cole Exoneration Review Commission, is expected to soon hit Gov. Greg Abbott's desk. 

The 11-member commission is so named after a Texas Tech student who died in prison 15 years after being convicted of a rape that DNA evidence later proved he didn't commit. Cory Session, policy director for the Innocence Project of Texas and Cole's brother, said the commission would provide a National Transportation Safety Board-like body to investigate how and why the system failed when an innocent person is convicted, just as the NTSB investigates major accidents. “We don't yet have a process in place that looks at these miscarriages of justice, no real independent body that can investigate and tell policy makers what needs to be fixed,” Session said. 

Now, if the state's highest criminal court would just call innocent people innocent. 

Some defense attorneys say the case of Fran and Dan Keller is just the most recent, and stunning, example of a Texas Court of Criminal Appeals that often refuses to address claims of actual innocence, even when the judges overturn a conviction. 

As we wrote last week, in the early 1990s the Kellers were accused of committing unspeakable crimes against children at a day-care center the couple ran out of their Austin home. The lingering societal panic over ritualized “Satanic” abuse, coupled with a misguided belief in recovered memories, led to the charges. The Kellers' convictions and 48-year prison sentences in 1992 largely hinged on an emergency room physician who later recanted his testimony that there was physical evidence of sexual abuse and a psychologist and so-called “expert” in ritual Satanic abuse named Randy Noblitt (who, as the Kellers' attorney noted in Fran's 2003 appeal, “was featured on ABC’s Primetime having a conversation with Satan, who, Noblitt agreed, was actually a pretty nice guy, notwithstanding, of course, his role as the dark lord of evil"). 

Perhaps the only thing more absurd than the claims against the Kellers — that, among other things, they forced kids to watch as they dismembered infants, subjected them to baby-eating sharks, and whisked children to and from Mexico to be raped by soldiers while unsuspecting parents were away at work — was the official investigation into the alleged crimes. Police scoured the records of at least eight airports searching for a mystery plane capable of landing in a residential neighborhood to quietly kidnap children for rape-trips to Mexico. They equipped a helicopter with an infrared camera, flying over at least 11 cemeteries looking for sites of human sacrifice. They took four-year-old kids to cemeteries across the Austin area, encouraging them to roam the grave sites, apparently hoping the experience would knock loose some memories of satanic rituals. 

Last week, the CCA overturned Fran's conviction, saying she'd been convicted on “false evidence,” pointing to the physician who recanted his testimony that there was any evidence of sexual abuse. Incredibly, however, the court also denied her claims of actual innocence. 

Fran's attorney, Keith Hampton, filed a request urging the court to reconsider this week. He wrote in part:

“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.” 
Hampton told us by email that the Keller case is a prime example of the CCA shirking its responsibility to rule on compelling innocence claims. He also mentioned another client, Sergio Castillo, who spent 13 years in prison for murder before a Brownsville trial court declared him “unquestionably innocent.” While the CCA ultimately overturned Castillo's conviction, on the grounds that prosecutors suppressed evidence that exculpated him, the court  “didn't address his innocence at all,” Hampton said.

An exoneration review commission tasked with looking at innocence cases is certainly a welcome development. But Hampton says the larger issue remains a court of last resort that fails to really exonerate people, even when they're proven innocent.

“Once you've identified people who are innocent, the courts must then exonerate them. Period.“

Here's Hampton's full request for the CCA to reconsider Fran Keller's actual innocence claims, which provides a blunt explanation of the madness behind the case against the Kellers in particular and the ritual Satanic abuse witch hunt in general. It is well worth reading: 

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Michael Barajas
Contact: Michael Barajas