Saturday, May 19, 2012
Believe the victim, but only when it leads to conviction, says Texas court
So let me get this straight, the victim has recanted, during a time she is less likely to be coerced into recanting, and is regarded by the court as unbelievable, yet was believed undoubtedly at an age she was more likely to be coerced.
Compounding the problem is the use of the Abel screening test, aka "The Diana screen," named after a girl allegedly abused and later committed suicide. The test is actually simple, it is a test where people are shown a series of pictures of adults and children in bikinis, and if you look at it too long, you are a pedophile. The test has been proven only about 65% accurate (about the same as chance), and can be beaten by simply showing revulsion at the pics or just not look at them as long.
New trial for man who challenged pedophilia test as junk science
By Chuck Lindell | Friday, May 18, 2012, 09:53 AM
The Texas Supreme Court today ordered a new sentence for Michael Arena, a Harker Heights man who has served almost 13 years of a 20-year sentence for molesting a young cousin who later said the incident never happened.
The court ruled that Arena deserves a new sentencing trial because of false testimony by a psychologist, who during Arena’s 1999 trial labeled him a pedophile who was likely to strike again.
The psychologist, Fred Willoughby, based his conclusion on a test that required the then-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.
According to the unanimous opinion, written by Justice Eva Guzman, Willoughby testified that the test had an 85 percent accuracy rate. In reality, it was 65 percent.
Willoughby also misstated the scientific support for the test, saying independent studies had verified its effectiveness (none had) and quoting a Brigham Young University study as establishing its accuracy. Instead, the study raised serious questions about the test, noting that its ability to distinguish pedophiles from “nonoffenders was not significantly better than chance.”
Had he testified truthfully, Guzman wrote, “the trial court would have excluded Willoughby’s testimony.”
Instead, prosecutors repeatedly referred to Willoughby’s testimony in closing arguments, urging jurors to choose a significantly long sentence to protect the community from a continuing threat. Jurors, who could have chosen probation, sentenced Arena to 20 years in prison.
“Indeed, the state’s closing argument made more express references to Willoughby’s testimony than to any other testimony in the case,” Guzman noted.
Having established that the testimony should not have been allowed in court, and that it contributed to the length of his sentence, Arena met the legal standard for getting a new sentencing hearing, the court ruled.
Defense lawyers have said they are confident that, if given a new sentencing trial, Arena would receive a sentence of less than the almost 13 years he has served in prison, essentially freeing him.
But defense lawyer Dustin Howell pushed for a finding of actual innocence, telling the Supreme Court during oral arguments in January that Arena would otherwise have to register as a sex offender for 10 years, limiting his employment and housing options “for a crime he did not commit.”
Two years after testifying that Arena molested her when she was 7 and he was 15, cousin Stephanie Arena recanted her accusations, saying she was urged to lie by her mother as part of a bitter child-custody battle.
A Bell County district judge who reviewed the case, however, concluded that her recantation was not credible, ruling that it could have been coerced by Michael Arena’s family. That finding, the Supreme Court ruled today, means Arena fell short in legally proving his innocence.