The Shadow of Satan's Silence

Back in 1996, when I first read Debbie Nathan's and Michael Snedecker's book Satan's Silence: Ritual Abuse and the Making of a Modern American Witch Hunt, I was appalled at the travesties of justice they depicted. A few years later, I got to know Debbie Nathan, and was astonished once more that the ordeal continued for so many who had been caught up in the latest example of what Charles MacKay called, as long ago as 1852, The Madness of Crowds.

Unfortunately, the madness continues. Radley Balko points out the continuing poison in the body politic, referring to the reversal, a bare week ago, of the 1992 convictions of Frances and Daniel Keller:

The state’s highest criminal court on Wednesday threw out the 1992 sexual assault convictions against Dan and Fran Keller but declined to find the former Austin day care owners innocent of crimes linked to a now-discredited belief that secret satanic cults were abusing day care children nationwide.

The Kellers spent more than 22 years in prison after three young children accused them of dismembering babies, torturing pets, desecrating corpses, videotaping orgies and serving blood-laced Kool-Aid in satanic rituals at their home-based day care.

No evidence of such activities was ever found.

Freed from prison in late 2013 as the case against them crumbled, the Kellers asked the Court of Criminal Appeals to declare them innocent, arguing that they were the victims of inept therapists, shoddy police work and “satanic panic” that swept the nation in the early 1990s.

A unanimous Court of Criminal Appeals instead overturned their convictions based on false testimony by an emergency room doctor whose hospital examination had provided the only physical evidence of sexual assault during the Kellers’ joint trial.

Dr. Michael Mouw later admitted that inexperience led him to misidentify normally occurring conditions as evidence of sexual abuse in a 3-year-old girl.

The nine judges did not provide an explanation for why they rejected the Kellers’ innocence claim except to say their decision was based on the findings of the trial judge “and this court’s independent review of the record.”

The Court of Criminal Appeals decision as to Frances Keller may be read here.

In a concurring opinion in Daniel Keller's case, Judge Cheryl Johnson protested eloquently against the Court's denial of the Kellers' claims of actual innocence:

This was a witch hunt from the beginning. The allegations in the indictment were based on the testimony of a three-year-old child who, even before she sporadically attended the applicant’s day-care facility, was in therapy for numerous psychological and behavioral issues. In accusing applicant, she asserted that applicant had come to her house and had cut her dog’s vagina with a chainsaw until it bled, that she was taken to a cemetery, where, after a person dressed like a policeman threw a person in a hole, Daniel Keller shot the person who had been thrown into the hole and cut up the body with a chainsaw while all the children helped, and that she had been put into a swimming pool with sharks that ate babies. She also alleged that applicant served blood-laced Kool-Aid, forced the children to have videotaped sex with adults and other children, sometimes wore white robes and lit candles before hurting the children, and forced the children to watch or participate in the killing and dismemberment of cats, dogs, and a crying baby. According to the complainant, bodies were unearthed in cemeteries and new holes were dug to hide freshly killed animals, an adult passer-by was shot and dismembered with a chain saw, Frances Keller cut off the finger of a gorilla at Zilker Park, and applicant had performed a satanic bone-replacing ritual on one child. And the children were taken on several plane trips, including one to Mexico, where they were sexually abused by soldiers before returning to Austin in time to meet their parents at the day-care facility. In spite of such fantastical claims, which should have produced total incredulity in the police investigators and prosecutors, charges were filed.

Despite all the incongruities and impossibilities in the State's case, Judge Johnson's concurrence was not joined by any of her 8 colleagues on the Court.

Imagine that.

The Statesman notes that "Prosecutors could dismiss the charges against the Kellers or press for a new trial. However, without Mouw’s testimony showing evidence of abuse, and with allegations almost 25 years old, a retrial would be a difficult proposition."

Not to mention the patent fiction upon which the charges were based, and the over 22 years of jail time this married couple served on charges based on a gore-fest worthy of Stephen King that left no trace, and a mythical gorilla from a non-existent zoo?

This is a problem that often surfaces in states with elected judges, like those on the Texas Court of Criminal Appeals in states that pride themselves on being "tough on crime"; the political and career incentives all flow against recognizing innocence. Better to pass the buck and let the prosecutors decide whether to mount a fallacious criminal case that any good lawyer can tear apart. Of course, one might think that 22+ years in stir deserves a little more than that political game, but, well, too bad.

Judge Cheryl Johnson showed that the calculus doesn't always run that way, even though her term expires next year. Common sense and common law need not always be divorced.

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In view of the amount of stick I have given Justice Scalia on this blog, I should point out that he authored a dissent in Maryland v. Craig (1990), in which he, along with Justices Brennan, Marshall and Stevens, deplored the majority's watering down the Confrontation Clause because of just this sort of moral panic prosecution:

The injustice their erroneous testimony can produce is evidenced by the tragic Scott County investigations of 1983-1984, which disrupted the lives of many (as far as we know) innocent people in the small town of Jordan, Minnesota. At one stage those investigations were pursuing allegations by at least eight children of multiple murders, but the prosecutions actually initiated charged only sexual abuse. Specifically, 24 adults were charged with molesting 37 children. In the course of the investigations, 25 children were placed in foster homes. Of the 24 indicted defendants, one pleaded guilty, two were acquitted at trial, and the charges against the remaining 21 were voluntarily dismissed. See Feher, supra, at 239-240. There is no doubt that some sexual abuse took place in Jordan; but there is no reason to believe it was as widespread as charged. A report by the Minnesota Attorney General's office, based on inquiries conducted by the Minnesota Bureau of Criminal Apprehension and the Federal Bureau of Investigation, concluded that there was an "absence of credible testimony and [a] lack of significant corroboration" to support reinstitution of sex-abuse charges, and "no credible evidence of murders." H. Humphrey, report on Scott County Investigation 8, 7 (1985). The report describes an investigation full of well-intentioned techniques employed by the prosecution team, police, child protection workers, and foster parents, that distorted and in some cases even coerced the children's recollection. Children were interrogated repeatedly, in some cases as many as 50 times, id., at 9; answers were suggested by telling the children what other witnesses had said, id., at 11; and children (even some who did not at first complain of abuse) were separated from their parents for months, id., at 9. The report describes the consequences as follows:

"As children continued to be interviewed the list of accused citizens grew. In a number of cases, it was only after weeks or months of questioning that children would `admit' their parents abused them.

"In some instances, over a period of time, the allegations of sexual abuse turned to stories of mutilations, and eventually homicide." Id., at 10-11.

The value of the confrontation right in guarding against a child's distorted or coerced recollections is dramatically evident with respect to one of the misguided investigative techniques the report cited: some children were told by their foster parents that reunion with their real parents would be hastened by "admission" of their parents' abuse. Id., at 9. Is it difficult to imagine how unconvincing such a testimonial admission might be to a jury that witnessed the child's delight at seeing his parents in the courtroom? Or how devastating it might be if, pursuant to a psychiatric evaluation that "trauma would impair the child's ability to communicate" in front of his parents, the child were permitted to tell his story to the jury on closed-circuit television?