PUBLISHER'S NOTE: An extraordinary document has been filed by lawyers for Fran Keller who are seeking to have her found innocent on the sexual assault conviction in 1992 and led to her sentence to 48 years' imprisonment in an atmosphere of satanic ritual abuse hysteria -in spite of her consistent denials. It is the "Memorandum" which has been filed on the petition of "habeas corpus" which is aimed at securing her release and vindication. The essence of the application is set out in a brief " preliminary statement" which reads: "Applicant Fran Keller was convicted of aggravated sexual assault of a child in 1992 and sentenced to 48 years’ imprisonment. She is innocent. Fran Keller was convicted of the brutal sexual abuse of a 3-year-old child on the following evidence: an outcry repeatedly retracted, medical observations now repudiated, a recanting witness’ false confession, child fantasies, a quack “expert” in imaginary satanic ritual abuse, false evidence from the police regarding nefarious cemetery-related events, the suppression of exculpatory evidence, and an investigation virtually certain to result in false allegations of abuse by children. Only this Court can recommend Fran Keller be granted relief." The lengthy document - a fascinating, but disturbing read - has been posted on-line by the Statesman. I have chosen to focus on the startling revelation, that Dr. Michael Mouw, the hospital physician who later testified that "Christy" had suffered recent injuries consistent with sexual assault, has retracted his testimony. In a brief section entitled "medical proof," the Memorandum indicates that: "Brackenridge Hospital physician Dr. Michael Mouw physically examined Christy on August 15th. Christy was alert, pleasant, cooperative, well nourished, clean, in no acute distress, and very cooperative with the exam. He noticed that while the opening to the vagina was normal, her hymen and labia minora were reddened. Mouw also observed a tear at the opening to the vagina “and what appeared to be lacerations of the hymen at 3:00 and 9:00.” The lacerations were no more than 24 hours old, in his opinion. He concluded Christy had suffered trauma to her hymen, consistent with sexual abuse. Pediatrician Beth Nauert examined Christy about two weeks later, but testified that the tear to the hymen noted by Dr. Mouw had healed. From Mouw’s report, it appeared to Nauert the injuries were fairly acute, meaning they probably had occurred within hours or days prior to Mouw’s exam. Nauert concluded Christy’s injury was most definitely consistent with sexual abuse, in part because there were three identified injuries around her vagina, according to Dr. Mouw’s report." Kudo's to the Statesman for making access to this extremely readable document on line - and for helping draw attention to this outstanding miscarriage of justice which cries out for rectification - not just for Fran Keller, but also for others in the U.S.A. and elsewhere in the world who were victimized by waves of irrationality which flooded the justice systems that were supposed to protect them. I have omitted page numbers and legal references. They, of course, can be found in the complete version of the "Memorandum, which can be accessed at the link below.
Harold Levy. Publisher: The Charles Smith Blog.
Dr. Mouw's retraction in a section of the Memorandum which bears the heading: "Claim for relief one: Mistaken expert testimony deprived applicant of her rights to due process and due course of law through the introduction of inadvertantly false evidence." The section reads as follows:
"Dr. Mouw now confirms his trial testimony was incorrect. (Affidavit of Dr. Mouw, attached). His mistaken perception of lacerations was not only the basis for pediatrician Beth Nauert’s testimony but was the only physical corroborating evidence for ritual-abuse “expert” Randy Noblitt’s testimony. For any juror wondering if anything at all had actually happened, medical confirmation of savage sexual abuse must have been persuasive. The other experts – Noblitt and Nauert – utilized Mouw’s report, amplifying and compounding the error.
The prosecution deftly highlighted this medical testimony in final argument, reminding jurors that the severity of Christy’s presumed injuries proved they had to have been the product of abuse: “What did Dr. Nauert say [based on Dr. Mouw’s exam]? Dr. Nauert said this type of injury to the child, where there are these two little lacerations that Dr. Mouw drew, there is a little tear in the introitus,” which no child could self-inflict. Christy’s claims about pens repeatedly inserted into her vagina and anus, and Perry’s description of the penetration of Christy’s vagina by Dan and Raul, appeared more plausible in the collective light of these expert determinations.
Today, Dr. Mouw could not be more clear: “I now realize my conclusion [that there was physical evidence of sexual abuse] is not scientifically or medically valid, and [] I was mistaken.” He had “minimal specific training in the are of pediatric sexual abuse,” which included a strong bias in favor of identifying variants in children’s vaginas as physical evidence of sexual abuse. He also noted he failed to use a culposcope during his examination, the failure of which can lead to “mistak[ing] normal variants in hymens of children for child sexual abuse,” as happened in this case.
Dr. Mouw soon after trial realized he was mistaken to conclude that his examination revealed lacerations consistent with sexual abuse. While his testimony is hardly perjury, its negative impact can be just as severe to the truth-seeking function of trial. The error he originated was all too human, as were the assumptions, affirmations, conclusions and the rest of the investigation that led an innocent woman to prison. The Court of Criminal Appeals has recognized that the unintentional use of evidence subsequently shown to be false is a cognizeable claim under Article 11.07 of the Code of Criminal Procedure.
Dr. Mouw provided the only first-hand medical testimony supporting the existence of physical abuse. Nauert observed no lacerations, and based her more extensive testimony Page 33 purely on Mouw’s mistaken report. His report was employed by ritual abuse “expert” Noblitt as a foundation for his more ornate “professional” opinion.
Dr. Mouw is not a lawyer and could not have anticipated his testimony would be the spigot for other expert and, as will be demonstrated supra, not-so-expert testimony (Noblitt). Nauert widened and deepened the impact of his mistake, while Noblitt capitalized upon it by giving false but professional-sounding context to Perry’s salacious rendition of an orgy that never happened. While Dr. Mouw could not have known his pivotal role in the conviction of Fran Keller, his report nevertheless spawned the greater portion of the case against her.
Dr. Mouw’s mistake negates the reliability of his identification of physical abuse. The error of mistaken perception can be likened somewhat to mistaken identification. The considerations for misidentification are suggestibility and likelihood of error via the process of eyewitness identification. If a mere deficiency in reliability defines a due process violation under methodology known to be merely suggestive under an objective view, a professional’s own admitted crucial mistake ought to be accorded even greater weight in determining a due process violation.
This Court should recommend to the Court of Criminal Appeals to grant relief under the Fourteenth Amendment to the United States Constitution and independently under Article I §19 of the Texas Constitution. It does not matter that Dr. Mouw’s testimony was not perjurious. Nor does it matter that the prosecution was unaware of the unintentional falsity of his testimony. The only issue is its materiality. Dr. Mouw’s recent acknowledgment that he was wrong about the existence of physical evidence of sexual abuse is not only material, but self-evidently exculpatory. Under every legal standard, materiality has been met. Fran Keller’s conviction is an unjust result from a trial that, as detailed further in this Memorandum, was also fundamentally unfair."
The entire"Memorandum" can be found at:
http://www.statesman.com/documents/2013/jan/14/fran-kellers-appeal/
See also: "Appeal filed for Fran Keller: The Oak Hill Daycare 'ritual abuse' fiasco," by reporter Jordan Smith, published by the Austin Chronicle on January 14, 2013.
"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.
Mouw's revelations are not the only potential game-changers in Keller’s appeal. Indeed, Hampton argues that Austin Police failed to reveal not only to Keller’s defense counsel, but also to prosecutors, that "evidence" they had that graves had been disturbed at a small private cemetery near the Kellers' home – where police took the children to see if they could "remember" anything that might have happened there – was false."
http://www.austinchronicle.com/blogs/news/2013-01-14/appeal-filed-for-fran-keller-the-oak-
hill-daycare-ritual-abuse-fiasco/
Wikipedia account:
http://en.wikipedia.org/wiki/Oak_Hill_satanic_ritual_abuse_trial
PUBLISHER'S NOTE
I have added a search box for content in this blog which now encompasses several thousand posts. The search box is located near the bottom of the screen just above the list of links. I am confident that this powerful search tool provided by "Blogger" will help our readers and myself get more out of the site.
The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
http://www.thestar.com/topic/
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.
Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com
Harold Levy: Publisher; The Charles Smith Blog.
