Saturday, June 02, 2012

Juvie sex-assault sentence overturned based on recantation, junk science

Slowly but surely, in leaps and starts (punctuated by inexplicable pauses and disappointing regressions), junk science long accepted in Texas courts is beginning to be more carefully vetted, at least in fringe fields where the number of cases affected is relatively small. In the latest example, Chuck Lindell at the Austin Statesman ("Central Texas man freed after conviction overturned on bad science," June 2) reported on Michael Arena's homecoming yesterday after he was released and his sentence overturned in response to a recantation by his accuser and the use of junk science at his trial. Since he was sixteen when convicted, Arena was sentenced as a juvenile and transferred to TDCJ where the 29-year old remained until yesterday:
Michael Arena, almost 13 years into a 20-year prison sentence for molesting a young cousin who later said the incident never happened, was released from prison Friday evening.

The Texas Supreme Court threw out Arena's sentence last month, ruling that a prosecution witness provided damaging false testimony during his 1999 trial — labeling Arena a pedophile based on a misused psychological test with a 35 percent error rate.

Friday morning, state District Judge Gordon Adams ordered prison officials to release Arena "forthwith pending a new (sentencing) hearing" in Bell County.

At 5:25 p.m., Arena — a mesh bag stuffed with belongings in each hand — walked out of his Dilley-area prison and into a prolonged embrace with his father, Robert Arena, freshly arrived after a giddy 220-mile drive from his Harker Heights home.
Arena has been freed, but not necessarily declared innocent:
Stephanie Arena, the cousin who accused Arena of molesting her as a 7-year-old, is prepared to testify in Arena's favor and has submitted sworn affidavits saying she lied about being sexually assaulted at the urging of her mother, who was embroiled in a bitter custody battle.

In addition, prosecutors cannot present testimony from psychologist Fred Willoughby, who in 1999 classified Arena as a pedophile based on a test that required the teen to click through images of swimsuit-clad people of various ages while the computer secretly measured how long he viewed each photo.

While testifying at Arena's trial, Willoughby overstated the test's 65 percent accuracy rate and improperly testified that a Brigham Young University study certified its accuracy. Instead, the study raised serious questions about the test, saying its ability to identify pedophiles was no better than chance.

The Supreme Court's May 18 ruling, however, rejected Arena's request to be declared innocent of aggravated sexual assault.

The Supreme Court said it could not credit Stephanie Arena's version of events because a Bell County judge determined that her recantation lacked credibility, finding that it was apparently the result of pressure by Michael Arena's family. The Supreme Court typically defers to lower courts on such judgments.
That outcome muted Friday's celebration of Arena's freedom.
"Unfortunately, despite mountains of evidence that the charges against him were not true, the court refused to find him actually innocent," defense lawyer Clint Broden said. "We are happy that Michael has won his freedom but sad that he has been deprived of 13 years of his life and that the truth has been suppressed."
What's important here from Grits' perspective is the court overturning the conviction in part because of the invalidity of the (supposedly) scientific assessment. How often has the same "Abel Assessment" been used in other cases and have they been vetted to ensure there was other, sufficient supporting evidence to justify the charges? Since these assessment functions aren't performed at accredited crime labs, they don't fall under the jurisdiction of the Forensic Science Commission, but there needs to be that sort of big-picture review that the FSC commissioned for arson cases regarding the science behind the Abel Assessment and whether it's improperly influenced the outcomes of other cases.

See prior, related Grits posts:


Jan said...

What a great day for the Arena family! Michael is a remarkable person. He is resilient. He is soft spoken and wise beyond his years.

Yesterday was surreal for his entire family.

It was a bittersweet moment for Robert Arena. He was so happy to embrace his son and to finally take him home. However, it was one year ago when Michael's mom, Betty, was diagnosed with cancer. Betty didn't get to see her son before she passed. The STATE refused to allow Michael that one last visit.

There are many people committed to clearing both John's name and Michael's name. It will happen. It is only a matter of time. The last time I spoke to Betty Arena I promised her I would not stop until her boys' names are clear. As long as I have breath, I will keep that promise.

Anonymous said...

The article doesn't indicate that any part of the orginal conviction was overturned--only the sentence. What's disturbing is the mention that the recantation of the victim might have been under duress or pressure from the offender's family. Unfortunately, this is not all that uncommon in child sexual abuse cases--especially cases of intra-family molestation.

Whatever issues or concerns exist with respect to the psychological assessment instrument used by the witness for the prosecution in this case, I can assure you that "junk" psychological testimony is not a problem exclusive to witnesses for the prosecution. Unfortunately, there are plenty of unscrupulous psychologists out there who, for a nice fee, will give testimony for the defense that is just as questionable and professionally suspect. When you're dealing with a field as subjective as forensic mental health and behavioral expert testimony, there are plenty of "quacks" out there for both sides to pick from.

Gritsforbreakfast said...

12:05 says, "What's disturbing is the mention that the recantation of the victim might have been under duress or pressure from the offender's family."

Regrettably, it's perhaps equally common to find situations like the daughter alleges actually occurred: At age seven, "she lied about being sexually assaulted at the urging of her mother, who was embroiled in a bitter custody battle."

One notices the tuff-on-crime crowd waves the victim flag right up until the "victim" disavows their stance, then she's a liar, coerced, etc.. Remarkable how quickly that flip flop happens. But then, when you're anonymous and unaccountable, it's not a problem. The judges hearing the case, OTOH, couldn't be as blatantly one-sided. They had to be sneakily one-sided, which is why they ordered resentencing instead of a new trial, where Arena would absolutely, without any question be acquitted.

Gritsforbreakfast said...

BTW, 12:05, I finally noticed your reference, or what I assume it was: The headline said "conviction" overturned though you're correct it was only the sentence, as was clear, I hope, from the body of the post. I edited the headline to make it correct. Thanks for causing me doublecheck it.

Anonymous said...

The fact of the matter, Grits, if you'd take the time to look, is that the prevalance of kids being coached to make credible false allegations of abuse in "bitter custody battles" is largely an urban myth. Statistically speaking, it is pretty rare. And when it does happen, it's pretty easy to ferret out. Most adults can't tell the same lie consistantly over and over again. 7 year old kids sure can't. What does happen all too frequently, however, in cases of intra-family abuse, is that kids who really were molested are not believed. And if they are believed, they are also frequently subjected to either subtle or overt pressure to recant. They are blamed for the disruption of the family, made to feel that they did something wrong, become ostracized and are pressured until they break. "If you would just change your story and tell everyone that you lied, daddy (or fill in the blank) could get out of prison and come home. You know he didn't mean to do it. You came on to him. He's really sorry. Blah, blah, blah." If you would step away from the sensational innocence headlines for a minute and go spend some time with the good people over at the Travis County Children's Advocacy Center, you might learn to have a little different perspective on the victimization of children. I dare you.

Anonymous said...

12:50 - Many years ago while working for CPS I investigated hundreds of child sexual abuse cases. What you say about false allegations during bitter custody battles being an "urban myth" is far from the truth. We saw these types of things freuquenty. It is far from rare, it is actually quite common. I don't know anything about the people that work at the Travis County CAC but I do know that if you talk to rank and file CPS workers who investigate these cases you will find that false allegations are far from rare. They frequently come out of custody battles. Custody battles often become very emotionally charged and often involve a lot of anger. I've seen good people do things during these situations that they would not ordinarily do. And, it is not unusual for one parent to use the kids to get back at the other parent in this way. I think, often, they convince themselves that these things are true.

It is much easier than you might think to get a child to make this type of allegation. It can even be done unintentionally by a well-meaning interviewer. While I worked for CPS I had a friend who had a 4 year old daughter. I was at her house one day and the girl had scraped her knee. My friend had worked for CPS longer than I had at that time and just to demonstrate how easily a child can be manipulated she started asking her how she hurt her knee. Now, the mother knew how the girl had hurt the knee but wihtin just a couple of minutes she had the girl saying that her grandmother did it.

As far as your argument that a child cannot maintain a consistent story. That may be true. But, the thing is that, in these cases, inconsistencies are often discounted For example, in the recent Mineola Swingers case in Smith County where the children talked about flying around the room on broomsticks and other impossible stories but the juries still believed them about the abuse.

So, as one who has worked in the trenches and seen this stuff first hand, 12:50, you don't know what you are talking about. I dare you to go work as a CPS investigator for a few years and then tell me what you think.

Anonymous said...

1:09, you'll note that I said CREDIBLE false allegations of abuse are rare. I didn't say that they don't happen. The fact that as a CPS worker you were able to identify the false allegations just proves my point. Still, the numbers don't establish that there is any epidemic of false allegations as many believe. The research on this issue is pretty clear and can be easily found online.

Anonymous said...

"Still, the numbers don't establish that there is any epidemic of false allegations as many believe. The research on this issue is pretty clear and can be easily found online."

Citations please. Any can say statistics say this or that. Give me the numbers.

Your comments again demsontrate that you simply don't know what you are talking about here. You seem to imply that false allegations are easy to spot. Child sexual abuse investigations are probably the most difficult type of investigation there is. On the one hand, you don't want to disbelieve and thus fail to protect a child who has been abused. On the other hand you don't want to falsely label someone as a child molester. These are very, very difficult investigations and it can often be very difficult to get to the truth.

Furthermore, there are many examples where it should be apparent that there are problems with a case (again see the Mineola Swingers case) but you have an overzealous investigator (or prosecutors as in the Mineola case) who assume the abuse occurred and refuse to believe anything different. Inconsistencies and other problems are discounted. I keep referring to the Mineola case because it was recent and it is a blatant example where there were glaring problems with the case that were ignored (and even intentionally concealed) by prosecutors.

Again, I dare you, go spend some time in the trenches. You'll find your contention that false allegations are easy to spot to be misguided. There have been many instances where CPS workers, police, therapist, and prosecutors all failed to spot false allegations and innocent people have gone to prison.

Another question: Why do you find it so hard to believe the child in the case that is the topic of this thread was coerced to make the allegation but you eagerly assume that she was coerced to recant? Why is it more plausible that she was coerced in one instance rather than the other?

Anonymous said...

This author makes a good point:

Widely-quoted data from studies also sometimes are taken out of context. For example, Prevent Child Abuse America, formerly the National Committee for Prevention of Child Abuse, declares that a Denver study of sexual abuse allegations "found that only eight percent of reports were false." [3]
But that figure applies only to malicious falsehoods. The researchers found that an additional 17 percent of the reports were made in good faith but also turned out to be false. And in another 24 percent of the cases the researchers could not determine if the report was true or not. [4] Thus, what this study actually found was that at least 23 percent and possibly as many as 47 percent of all sexual abuse allegations are false. Furthermore, to be considered true in this study, a report needed only to meet the standard used by most child protective agencies -- that there is believed to be "some credible evidence" of abuse, even if there is more evidence that there was no abuse.

Note specifically that in 24% of the cases it could not be determined if the allegations were true or not. I would be that a large percentage of that 24% were sexual abuse allegations. Sometimes it is impossible to determine if the allegations are valid or not. Looking at those numbers together it appears that a total of 49% of the allegations were either false or unable to determine. That pretty much goes along with what I saw while working for CPS.

Anonymous said...

Interesting fact about the Children Advocacy Centers -- check out any Center's website. They work with the prosecutors. Now, check out the board members of any Advocacy Center. Williamson County Children's Advocacy Center is a good place to start. Then look at Bell County's. This isn't to discredit the purpose of the Centers, just to question where they get their facts from the get go. All I'm sayin'

Anonymous said...

This was the testimony from the seven year old "victim" the convicted Michael in the first place:

Q. Stephanie,did Michael ever make you do anything to his private parts?

A. Yeah.

Q. Is that a yes?

A. Yeah,uh, huh. Yeah.

Q. Did he make you put your mouth on his private parts?

A. Uh,huh. I think so.

Q. You think so?

A. Yeah,I can’t remember.

Q. You think that happened. Where do you thinkthat happened? Whose house? Do you remember?

A. No.

Q. You don’t.

A. Huh,uh.

Q. Did he ever make his private parts touch your private parts, Stephanie?

A. I think -- (Moved head up and down.)

Q. You nodded your head and you said, “I think so.” You’re going to have to tell meyes or no.

A. Yes.

Q. Where did that happen? Do you remember?

A. Huh,uh. No.

Q. No. Did it happen at one of those three places you mentioned?

A. Yeah.

Q. When no grown-ups were there?

A. Yeah.

Q. Now,getting back to when I asked you if he ever made you put your mouth on hisprivate parts, you shook your head, you nodded and then you said, “I think so.”You’re going to have to tell them, is that yes or no?

A. Yes.

Q. Where did that happen, do you remember?

A. No.

Anonymous said...

People should be outraged about this for several reasons.

Bob Barina Michael's so called "trial attorney" is still representing people. He can be contacted at: 254-699-3755 and

Meanwhile, Willoughby is still doing sex evaluations for Williamson County. Willoughby is a partner in the Center for Cognitive Education in Georgetown. People can email and call his partners urging them to boot Willoughby from the practice. (512) 868-9644 or

Likewise, officials in Wiliiamson county who still prosecute people based upon Willoughby should be contacted.

Anonymous said...

I would contact them if it happened to someone in my family. It would be the last contact they had with anyone!

Anonymous said...

" being coached to make credible false allegations of abuse in "bitter custody battles" is largely an urban myth. Statistically speaking, it is pretty rare."

And, if the statement of the 'victim' is not believeable, certainly the victim's rights groups will help the vulnerable and confused child to create and format a much more solid statement, even if it's not true. So sad for everyone.

Anonymous said...

This just supports my belief that you can't trust eyewitnesses. I don't believe the victim, no matter how many come forward.

Urban myth is an idiot said...

anonymous said "t the prevalance of kids being coached to make credible false allegations of abuse in "bitter custody battles" is largely an urban myth. Statistically speaking, it is pretty rare. And when it does happen, it's pretty easy to ferret out." That is so false it turns my stomach. When you tell a 5 year old that "unless you say this, they will take you away from us and you will never see us again" (one of the most common threats to a child) they will give the same story over and over and over again. To do otherwise is to lose their whole family and to be alone. That is instictually life threatening to a 5 year old. It does in fact happen because it happened in our family and we know it was false because we were standing there within 10 feet of them talking to them the whole time. Yet, the child told what she was told to say. And she only had to tell it once not over and over. From that point on, they used the video of her telling.

Anonymous said...

How this testimony was ever allowed to stand is sickening.
They were leading the witness and almost telling her what to say.

ShellyStow said...

Grits, thank you for the article, and thank you for weighing in on the side of research, facts, and statistics. Now, would you please do me one favor? Would you please, please, remove the "anonymous" option from the comment board and require a legitimate sign-in? I know user names are little better, but at least with them it would be so much easier to follow the conversation.
Thank, Shelly

Incandesio said...

12:05 said: "When you're dealing with a field as subjective as forensic mental health and behavioral expert testimony, there are plenty of "quacks" out there for both sides to pick from."

But isn't the prosecutor supposed to be pursuing truth, not just a conviction? I would expect a defense attorney to do anything in their power to get their client off; that's what they're there for, isn't it?

The state is supposed to be seeking justice, so it seems inexcusable for them to use questionable methods to get a conviction.

Anonymous said...

Unfortunately, 1:09, it seems some prosecutors cannot see past the "game." They only see it as a contest between themselves and the defense attorney and they only care about winning. They lack the intellectual depth to really understand the concept of justice or why the system is structured the way it is or why it is necessary to uphold the constitution. They don't realize that they are representatives of the government, and, as such, have a duty to make sure the proceedings are fair and that duty extends even to the defendant. They don't realize that they, as representatives of the government, have a duty to make sure the constitution is followed. They lack the ability to see why the government should have a higher burden than the defense. Some prosecutors care only about power and winning at all costs.

Recently, a prosecutor posted some comments here that he had posted on the TDCAA website reqarding John Bradley and the Morton case. Over on the TDCAA website they deleted the bulk of the comment leaving only a couple of paragraphs. They deleted the comments that were the most critical of Bradley and prosecutors in general. These people lack the ability to even confront criticism from their own ranks. They feel the need to silence dissenters among them. This is an indication that, as a group, they are only concerned with their own power and are completely devoid of any ability to critically examine themselves. This is a group who has a hatred for things like free speech and free and open debate. They don't want any limits on the power of the government. As a group they are blinded by their biases and refuse to admit that they are their colleagues make mistakes. What's worse, they willfully turn a blind eye to colleagues who engage in serious misconduct. Not only do they turn a blind eye but they give awards to those who engage in some of the most unethical behavior (Charles Sebesta and Jack Skeen). Its truly scary to realize that we have people like this in such positions of power. If the people in power have no respect for justice, truth, the constitution - then those ideals become nothing more than meaningless words.

Anonymous said...

My God, I've never seen so many supporters of child abusers and molestors in all of my life! Either you people are a bunch of sick perverts, or you're some of the most naive and paranoid people around! It's reprehensible and appalling that there could be so many supporters of people who victimize and exploit children! Sick! Shame on you!

Anonymous said...

Good job 12:00 - just start spewing garbage without actually applying any critical thinking to the subject. It's scary to think that people like you end up on juries.

Jan said...

12:00 -How dare you accuse me and those supporting the Arenas of supporting a child abuser or a child molester. Either you don't know what you are talking about; or you are working and blogging for Bell County prosecutors and judges; or you are just a troll.

God help you if you are ever falsely accused in a hang 'em high county.

nurseintexas said...

I am not supporting child molesters. I SUPPORT JUSTICE!! Justice has prevailed in this case.. How many other innocent people are still suffering?? God bless Micheal & the ARENA FAMILY !

Anonymous said...

My God 12:00 and others like you, I can't believe YOU would support child abusers and child molesters.

All 4 of the Arena children (John, Michael, Austin and Stephanie) were abused and molested. All 4 were under the age of 17 and were by law considered children at the time. These sick accusations were planted in the minds of Austin and Stephanie by their own mother.

The mom told the kids to say that horrendous sex acts were done to them and she told them in detail what to say. Some would say this is deviant. Then, according to records, the children were interviewed multiple times by the STATE and asked repeatedly if the sexual accusations conjured up by the mother occurred; the STATE exposed the children to sexually invasive physical exams. It is noted in the file there was reason to believe the children were being coached by the mother on what to say but the State didn't pursue this avenue. NOr did the State question why it took the mother so long to report the alleged abuse. Instead, the STATE threatened to charge Stephanie with perjury when she finally had the courage to go against her mother.

Next the STATE OF TEXAS did their funky business to John and Michael which included lying to the children, showing the children provocative pictures, then questioned them about perverted acts the boys had never heard of. After the STATE sexually abused John and Michael, the STATE took them hostage and separated them from their loving parents. The STATE held John hostage for 5 years and the STATE held Michael hostage for almost 13 years;

And 12:00 evidently supports this.

PAPA said...

FELONY CHARGES against the Mother and Cousin that falsely accused him.When is there going to be a law with criminal charges for wrongful accusations,it is long past due.

Anonymous said...

When the child’s out cry can gain a conviction for a DA, the child can not tell a lie or have been coerced by the victims parent. Funny after a few years when the child’s age of reason sets in. They think back on how they where coerced or coached by the parent, and recant. They are now lying or have been coerced by the so called abusers family. To all you rightous victims flag wavers. You can't twist it your way!!

ShellyStow said...

7:50 am, do you have any idea how ludicrous your statement is in the face of reality? Do you even live in reality? Sorry, I am not usually so rude, but your statement really takes the cake. The child is not, by true definition and in some cases, lying because one that young has been brought to believe, at least to some extent, that what he says is true. But we will never know how many pleas were forced and how many wrongful convictions have been had on nothing but the word of a child who was either out and out lying or else had been coerced to believe and make a false statement.

Your foolish statement assumes that falsely accused persons have never been counseled by attorneys to take the plea or face an almost certain long sentence. It assumes that every prosecuting attorney digs and hunts for the truth, a la "Law and Order" and would never charge or prosecute on the unsubstantiated word of a child or teen.

Your ridiculous statement is an insult not only to Michael and his family but also to those undetermined many who even now sit in cells or struggle under the label of sex offender, a label they do not deserve.

Anonymous said...

Everyone keep in mind Stephanie was 7 years old and Austin was even younger when the Mom took off with them. The mom wanted custody but custody had been awarded to the dad. Mom stole money and on her visitation weekend took off with the kids. No mention of sexual abuse was made until she was caught. It was then that mom manipulated these small children.

Why in God's name would anyone think the children should be punished?

Anonymous said...

i belive there are tens of thousands of innocent males and females on the sex offender registry across this country.because of lies and junk psychological(science),everyone wantas to put them away ,but never want to amitt they were wrong.when they do amitt to wrong doing,it takes them for ever to clear that person.when everyone across this country realy knows the truth about our sex offender laws ,they will be shocked,to see how easy one of their loved ones could get placed on the sex offender is time for our law makers to change these laws.

The Comedian said...

The Salem witch trials of 1692 were based on the false testimony of children. The trials finally ended about the same time as Massachusetts Governor Phip's wife was questioned about being a witch. All of the remaining accused (those not having been executed or died in custody) were released.

In 1711 Massachusetts colony passed a bill restoring the rights and good names of the accused.

In 2001 the Massachusetts legislature passed a resolution officially exonerating five victims not named in the 1711 bill.