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Inmate challenges pedophilia test as junk science

3-2-2012 Texas:

Charged with molesting two young cousins, Michael Arena was summoned to a psychologist's office to measure his sexual attraction to children.

The test given required the 16-year-old to click through images of swimsuit-clad people of various ages while the computer secretly measured how long he viewed each photo. The results, according to the prosecution-hired psychologist who administered the test, showed Arena to be a pedophile who was a "high risk" to strike again.

Bell County prosecutors hammered the finding during Arena's 1999 trial, urging jurors to choose prison over probation to protect children from a teen "diagnosed as a pedophile by an expert." The jury responded with a 20-year sentence.

Now 29, Arena still has 7½ years left on his sentence.

In the years since Arena's trial, however, both of his accusers have recanted, saying they lied about being sexually assaulted at the urging of their mother, who was embroiled in a bitter custody battle.

Troubling details about the psychological test also have emerged, prompting Arena's lawyers to begin a two-part appeal designed to gain his freedom based on innocence or, at the very least, grant Arena a new sentencing trial that excludes a psychological test that defense lawyers deride as junk science.

The Texas Supreme Court is weighing both requests, which are opposed by prosecutors.

Though interest in Arena's case tends to focus on his claim of innocence, his attack on the psychological test could influence future attempts to challenge allegedly bad science in the courtroom — a continuing problem that the nation's appellate courts have struggled with for decades.

The test, defense lawyers say, had an unacceptably high 35 percent error rate that was not disclosed to Arena's judge and jury. It was never intended to be used to identify pedophiles, they claim, and a university study found that its results were little better "than chance" when trying to distinguish pedophiles from non-pedophiles.

In addition, the psychologist who examined Arena inflated the test's effectiveness and scientific support when he testified at Arena's trial, leading to a reprimand from a state regulatory agency four years later, court records show.

Issues with the test seemed to resonate with many of the Supreme Court's nine justices during oral arguments in January.

Justice Nathan Hecht dismissed the test as "bordering on hokum" and less likely to yield valid results than lie-detector tests, which are not admissible in criminal court proceedings.

Justice David Medina noted that a 65 percent accuracy rate would have earned the test an F in a school setting. "To incarcerate somebody for one day, you use a standard that's not even A-plus?" Medina asked lawyers for Bell County. "That seems wrong on its face."

Lawyer John Gauntt Jr. with the Bell County attorney's office acknowledged that a 35 percent error rate was "not a suitable standard" for use in court. He also acknowledged that the prosecution's expert, Georgetown psychologist Fred Willoughby, provided false testimony about the test's effectiveness in the Arena case.

Even so, Gauntt told the court, the 20-year sentence should not be overturned because Arena cannot prove he was harmed by Willoughby's testimony — a necessary step toward earning a new sentencing trial.

Jurors were more likely swayed by the victims' testimony of abuse than by Willoughby's opinion, Gauntt argued, noting that the jury declined to choose the maximum 40-year sentence. A district judge in Bell County who reviewed Arena's appeal came to the same conclusion when he denied Arena's request for a new trial in 2008, Gauntt added.

A skeptical Justice Eva Guzman called that a "tough" argument to accept, given that jurors chose a significant prison term after prosecutors emphasized the expert's diagnosis of pedophilia.

Family problems

In the late 1990s, Michael Arena and his year-older brother John lived a block away from their younger cousins in Harker Heights, and the two families frequently mingled for holidays, birthdays and other gatherings.

Everything changed in 1997 when Michael and John's aunt by marriage, Lavonna , filed for divorce and later took her children — Stephanie, 7, and Austin, 5 — to Florida, where she changed their names in an effort to hide, only to be discovered within four months. The day after discovery, she filed a report with Child Protective Services claiming that her children had been sexually abused in Texas, court records show.

The pattern was repeated in Iowa, where Lavonna next took the children and managed to stay hidden for almost a year — filing sex abuse complaints there after her husband tracked his children down, court records show.

Michael Arena was an eighth-grader who dreamed of a football career when his uncle Stephan pulled him aside to ask about the allegations that he and John, on separate occasions, had forced their cousins to have sex.

"I said: 'What are you talking about? Come on, Steve, how long have you known me?'" Arena recalled during an interview from the state prison in Dilley, about 70 miles southwest of San Antonio. "There's no way. They're like my little brother and my little sister."

Investigators in Bell County, however, got a break when Michael's older brother, John, signed two confessions admitting he assaulted Stephanie. He was sentenced to seven years in prison, serving 5½.

Today, John Arena says he confessed in a misguided attempt to spare his brother from the accusations. If anything, however, he made matters worse for Michael, who went to trial in 1999.

On the witness stand, Austin didn't testify about any acts committed by Michael Arena, prompting the judge to drop an assault charge naming the boy as victim. But after hearing tales of abuse from Stephanie, jurors returned guilty verdicts on the two remaining charges of aggravated sexual assault of a child.

'Objective' testing

The third day of Michael Arena's trial was devoted to his punishment.

Willoughby, the first prosecution witness, described administering the Abel Assessment, a test to measure sexual attraction that was named for its Georgia developer, research scientist and psychiatry professor Gene Abel.

The two-part test included a questionnaire that, once graded, showed Arena's responses to be "socially desirable." However, Willoughby testified, he discounted the results because it was easy to choose acceptable responses to such questions as: "Do you have intense sexual fantasies about children?"

More important, Willoughby testified, was Arena's performance on the "objective" portion of the test — the time spent viewing dozens of photos showing people of different ages as they stood or sat before a neutral background.

From prison, Arena recalled the images "getting weirder and weirder" as people standing alone gave way to photos of a woman holding a rope, an older man with a younger girl and someone tied up in a chair.

"I'm sitting there, and I'm more appalled than anything," Arena said. "I didn't study these pictures and all that. I flipped through them."

At Arena's trial, Willoughby testified that he sent the boy's viewing data to Abel's for-profit company in Georgia for analysis. The results that came back, he said, showed Arena had "significant sexual interest" in 8- to 10-year-old girls and in boys who were 2 to 4 and 8 to 10 years old.

Based on the test results and the guilty verdict, Willoughby said, he classified Arena as a pedophile.

The psychologist also testified that he believed the boy was a continuing danger to children. Although he didn't tell jurors how he came to that conclusion, in a report Willoughby said Arena's "strong denial" of the charges presented a higher risk that he would engage in the same behavior again, court records show. (On appeal, defense lawyers complain about the "circular reasoning" that made proclaiming innocence a legal liability for Arena.)

Three months before Willoughby testified, however, Brigham Young University researchers published a report raising serious questions about the assessment's scientific underpinnings.

The study found error rates of up to 48 percent when the test tried to differentiate between adolescent child molesters and non-molesters. The study also noted a 42 percent false-positive rate when non-molesters were tested.

The BYU study prompted Abel to publish a response arguing that his test was never meant to diagnose pedophilia or identify pedophiles — which was how Willoughby used it — but instead is a tool to guide the treatment of sex offenders.

In the years since Arena's trial, a number of Texas courts have disallowed testimony based on the Abel Assessment, ruling that the test is unreliable and that its results cannot be independently verified because Abel's for-profit company does not reveal its methodology for proprietary reasons.

"In hindsight," Bell County lawyer Gauntt told the Supreme Court, "I don't know of anybody using this assessment (in court) anymore."

Accusations recanted

Defense lawyers are confident that if given a new sentencing trial, Arena would receive a sentence of less than the 12½ years he has served in prison, essentially freeing him.

But during arguments before the Supreme Court, defense lawyer Dustin Howell said that without a finding of innocence, Arena would have to register as a sex offender for 10 years, limiting his employment and housing options "for a crime he did not commit."

Stephanie first recanted her accusations in 2001, about 11 months after courts returned her to her father's home. A district judge who handled the ensuing appeal, however, found her change of heart to be unpersuasive, ruling that she was apparently subject to manipulation from her mother on her trial testimony and from her father on the recantation.

Austin added his voice to Stephanie's on the current appeal, with both testifying in 2007 that they lied on the stand at the urging of their mother, who said she would be sent to prison if they did not.

"I was just thinking, well, this isn't really true, but I shouldn't question my mother, you know, because she is my mother and she's got wisdom," Austin testified.

But as with the earlier appeal, District Judge Gordon Adams of Bell County ruled that the recantations were not credible, citing John Arena's confessions, the testimony of all witnesses and "other evidence."

Appeals courts typically defer to lower courts on such fact questions — acknowledging that trial judges are in a far better position to weigh the credibility of witnesses who appear before them. But Adams' lack of specificity about his doubts prompted several Supreme Court justices to express frustration and wonder aloud how much deference his opinion is due.

Justice Phil Johnson sounded a note of caution, however, expressing discomfort with "substituting our judgment for the trial judge" by ruling he "got it wrong."

As Johnson's statement indicates, if the Supreme Court were to rule in Arena's favor, it would be more likely to order a new sentencing trial than to declare him innocent against the wishes of a lower-court judge.

Arena said he is trying not to get his hopes up as the Supreme Court deliberates his fate. "What scares me is that I've been through several courts, and it always came to get me in the end," he said.

If freed, he hopes to get a business degree and perhaps build a career in the stock and bond market, but he tempers those hopes as well, noting that having to register as a sex offender would restrict him "from every little aspect of trying to improve myself. I'm sure colleges wouldn't accept me."

Arena, who transferred from a juvenile lockup to the adult prison system as he neared his 21st birthday, said he bears no ill will toward Stephanie, who he said has apologized by letter. "I don't even blame her," he said. "I think she's a victim in this whole ordeal, just like me and my brother.

"This whole thing has really torn my family apart," he said, noting that his parents lost a restaurant business and sold their home to pay legal fees. His mother, Betty, died last year of cancer, and the strain of the abuse allegations drove a wedge between his father and uncle, Arena said.

"I'm hoping everything's all right so I can get out and bring this family back together, some way, somehow," he said.

Arena's case is before the Supreme Court because juvenile cases are considered civil court matters. The case is styled "In the Matter of MPA, 10-0859" because defendant names are confidential in juvenile court. ..Source.. by Statesman

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