'Inmate challenges pedophilia test as junk science'

The Austin Statesman's Chuck Lindell reports ("Inmate challenges pedophilia test as junk science," March 2) on a legal challenge by TDCJ inmate Michael Arena - who was convicted of sexually assaulting two young cousins when he was a teenager - to use of a particularly insidious brand of junk science aimed at sex offenders called the Abel Assessment, which is based on similar principles to the penile plethysmograph. (Try saying that three times fast.) Neither forensic technique is allowed to be used at trial under modern evidence standards - and probably shouldn't have been in this case - but the plethysmograph is still used rather frequently in post-conviction settings in Texas, particularly among parolees who're assigned sex-offender conditions. The Abel Assessment suffers from an error rate of 35-48%, according to various estimates in Lindell's article. One study found "a 42 percent false-positive rate when non-molesters were tested."

In Arena's case, his claims about the test's inaccuracy are bolstered by the recantation of both alleged victims, who say they were encouraged to lie by their mother who was going through a bitter divorce. Writes Lindell:

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.

Lindell includes an interview with Michael Arena, speaking from a Texas prison:


Notably, this case is being heard by the Texas Supreme Court instead of the Court of Criminal Appeals because Arena was convicted as a juvenile. That's important because civil courts generally have much more rigorous standards for scientific evidence, in part because both sides in civil litigation have money to routinely hire experts. By contrast, in most criminal cases the prosecution has most if not all of the access to lab resources and forensic expertise unless the defendant pays for it or a judge orders it. These are judges who're used to seeing science in the courtroom held to much higher standards than their counterparts on the Court of Criminal Appeals, and Lindell's account of oral arguments in Arena's case shows the Abel Assessment is getting a more skeptical reception from the Texas Supreme Court than junk science sometimes receives from Judge Keller and Co. on the other side of the building.