The Austin Chronicle

http://www.austinchronicle.com/news/2010-11-05/criminally-innocent/

Criminally Innocent

How can you be exonerated of a crime that never happened?

By Jordan Smith, November 5, 2010, News

Twenty-eight-year-old John Arena would like to visit California. He's never been there – in fact, he's never traveled very far from his childhood home in Harker Heights, in Bell County. He'd like to see the California coast and to visit with the parents of his girlfriend, who is also the mother of his three children. But he's too scared to travel that far from home. "To me it's just not safe," he says.

It's not safe because John Arena is a registered sex offender. Unless he can find a way to clear his name, he will have to register with the state for life for having allegedly molested his cousin Stephanie when he was 15 and she was just 7 years old.

In April 1999, after questioning by police, John confessed to having sexually abused Steph­anie Arena, and he was subsequently sentenced to seven years in prison. The problem, according to John, his family – including Stephanie – and other supporters, is that he didn't molest Stephanie. Instead, he says, he falsely confessed to the crime after being pressured to do so by a police detective, and then took a plea deal to avoid a trial that he was told would land him in prison for decades. In fact, John says he confessed in part because he was told that if he did so the state would not prosecute his younger brother, Michael Arena, whom Stephanie had also accused. Yet Michael was also charged with the crime. Michael did not confess and instead took his case to trial; in 1999, he was found guilty and sentenced to 20 years behind bars.

At 9 years old, Stephanie testified against Michael in court; two years later she recanted her testimony. She had been told to implicate her cousins, she since says, by her mother, who at the time was involved in a bitter divorce from her husband Stephan Arena, Stephanie's father and the boys' uncle. Stephanie has maintained, for more than a decade, that her original testimony was in fact a lie. (Initially, her younger brother Austin Arena, then 5, also said the cousins molested him. But John's confession mentioned nothing about Austin, and at Michael's trial the court dismissed for lack of evidence a charge related to his having molested Austin.)

Although both brothers and their original accuser insist the men are innocent, the courts have disagreed, concluding that Stephanie's recantation is not as credible as her initial allegations – despite the fact that she has steadfastly maintained not only that her cousins are innocent but also that no sexual crime against her ever occurred.

No Evidence

Unlike the dozens of Texas inmates who have been exonerated of sexual offenses they never committed with the help of DNA evidence, the Arena brothers faced no biological evidence to prove or disprove the original allegations made against them. Indeed, in the climate of increasingly strict sex offender laws, and considering the credulity with which many lawmakers and members of the public regard all allegations involving sexual abuse, the Arenas are likely to remain among a group of offenders advocates and attorneys say are a growing population: individuals wrongly convicted of sex crimes who have no concrete scientific proof to help them exonerate themselves. (For more on the consequences of Texas' sex offender laws, see "Sex Offenders Exposed," Sept. 10.) "That's the classic example of a messed-up system," says Mary Sue Molnar, founder of the fast-growing group Texas Voices, which advocates for reforming the state sex offender laws. "I would bet my right arm that those boys are innocent."

Texas has been home to more exonerations of the wrongfully convicted than any other state, and many of the 42 exonerations so far have involved alleged sexual assault in which physical DNA evidence was available to help eventually set the record straight. What happens when there is no biological evidence available for testing? Those offenders, of whom experts say there are likely thousands in Texas alone, are generally out of luck. "Wrongful convictions proven by DNA evidence are just the tip of the iceberg of the exonerations that have occurred in Texas and throughout the U.S.," state Sen. Rodney Ellis, D-Houston, said in an e-mail. "It is estimated that DNA would be available and useful in less than 10 percent of all serious cases, and there are many cases where evidence isn't preserved. One prominent piece of research found that three to five percent of people in prison were wrongfully convicted. Even if only one percent of Texas prisoners are innocent, that means that over 1,500 people in prison today should not be there."

That's the case with the Arena brothers, say their family members and supporters. The Arenas were sent to prison while still teenagers, though there was no evidence to suggest the assaults had even happened, save for the testimony of the young Stephanie. Stephanie Arena Gibson, now an adult, has recanted her accusations multiple times – not only to the courts but also to a national audience on a 2006 episode of ABC's 20/20. "I didn't even know what I was saying, and I didn't even comprehend the consequences of what I was saying," she told 20/20. "Now that I am older, and I can understand the consequences of my actions, I need to step up and do what I have to do to make things right."

Although the court and prosecutors should have been skeptical from the start, the state did not hesitate in the face of Stephanie's accusations that her cousins had both sexually assaulted her, allegedly on multiple occasions and in several locations, including at the children's grandparents' home – with no one the wiser. But the Arena family, including Steph­anie's father, Stephan, says that story never made sense – and the family has been trying for more than a decade now to make the state listen to what they say really transpired back in 1997, what the family says led to the conviction of two innocent teen boys.

They argue that Stephanie was coerced into making the damaging accusations by her mother, LaVonna, during a heated divorce and battle for custody over Stephanie and her younger brother, Austin. In the spring of that year, according to court records, LaVonna stole several hundred dollars from the H-E-B where she worked and fled the state with the children, initially to a homeless shelter in Florida, in violation of a court order. In an effort to avoid trouble for disobeying the court, family members, including Stephanie, say LaVonna asked her young daughter to say they'd left Texas because she'd been abused. Stephanie did as she was told.

In testimony, LaVonna denied that she ever told her children to make false accusations against their cousins, but Stephanie still maintains that is exactly what happened. "My mom is kind of mentally unstable," Stephanie, now 21, married and in school full time, said during a recent phone conversation. "I don't know what she was thinking, but she told me to say that my cousins had molested me, otherwise she would go to jail," she continued. "I was 7 at the time – I don't know what sexual molesting means, but I do know what jail means."

It was not the first time LaVonna had raised the specter of sexual abuse – nor would it be the last. According to court records, LaVonna had previously accused another man, the father of her eldest daughter, of having abused their child, an accusation the girl denied. Also according to court records, LaVonna called Harker Heights police in 2000 – well after John and Michael had been sent to prison – to report that the two Arena boys had again molested Stephanie and her brother, Austin. Since the boys were already locked up, the police dismissed the allegation.

That should have been a red flag, says veteran Austin family law attorney Catherine Mauzy, who has seen more than her share of divorce and custody cases in which allegations of sexual abuse are made. "A really telling sign is when [accusations are made] multiple times," she said recently.

Unfortunately, there is a dearth of credible research suggesting how often false accusations are made during custody or divorce battles. Mauzy notes that whenever allegations of sexual abuse come up, they have to be taken seriously – in part because it is often difficult to know whether they are true. But experience also tells Mauzy that false accusations are all too common: "Every single lawyer doing this work for a while would say, 'Hell yes, it happens,'" she says. "It happens with frightening frequency." Maybe not every day or every month, but inside of a year, she says, she'll have a case come across her desk where such accusations crop up, most often with little evidence to help confirm one way or another if they are true. "It's scary as hell."

Trusting the System

When the cops came calling in the spring of 1999, the boys' parents, Betty and Robert Arena, voluntarily took John and Michael to the police station for questioning. John was 15 when the crime allegedly happened (Michael was 14), but by the time the case was actually investigated – more than a year after LaVonna said Stephanie first told her mother she'd been molested – he was 17. John says that when he went in to talk to the local police detective, Erika Jordan, he still had no idea what was going on. "I didn't even know a crime had been committed," he recalled recently. But his dad had told him to go and "help them out. Be honest." Once inside an interview room, John said, Jordan began reading information to him from a paper; he needed to tell her what she wanted to hear, he says he was told. He told her he didn't know what was going on and that he wanted to leave; that wouldn't be allowed, he recalls the detective telling him.

Testifying at a hearing in connection with an appeal of Michael Arena's conviction, Jordan told the court in 2001 that John came to the police station voluntarily and gave his 1999 statement voluntarily. She never advised him of his rights before or during the interview, she said, because he wasn't in custody and was in fact free to leave at any time. "Did you ever tell him he was under arrest?" prosecutor Thomas Seigman asked.

"No, I did not," Jordan answered.

"Did you ever lock any doors behind him?" Seigman continued.

"No, I did not," she said.

"A silly question: Did you ever hold a gun to his head or anything like that?" the prosecutor asked.

"Absolutely not," Jordan replied.

Despite what Jordan told the court, John says he did not feel that he was free to leave without telling the detective what he believed she wanted to hear. So he did, he says, parroting back to her the information she'd just read to him about Stephanie's allegations. He figured it was the only way out. "I know that sounds stupid," the now-28-year-old said this summer. "But I had listened to my dad: 'Trust the law; trust the system,'" he'd been told. He just wanted out of the room, so he wrote a statement, confirming that he'd assaulted his cousin – a statement that he says is not true and never was. His brother, Michael, was also questioned but refused to admit to anything. The truth, John thought, would certainly come out.

But it was too late. Before long the boys had both been charged with sexual assault of a minor. "I took the plea bargain," John says, for two reasons: First, his lawyer told him that if he copped to the crime, the state would drop the charges against Michael. And second, he was also told that if he failed to take a plea for five years, a jury would most certainly sentence him to 40. As it turned out, John got seven years instead of five, and the state did not drop the charges against his brother. Instead, after a three-day trial in 1999 – during which the court-appointed attorney failed to call any witnesses, except for Michael, to counter the accusations – Michael, then 16, was convicted of aggravated sexual assault of a child and given a 20-year determinate sentence. He isn't due to be released until 2019.

Molnar, the founder of Texas Voices, which has more than 600 active members advocating for commonsense changes to Texas' sex offender laws, says she's not at all surprised that John pleaded guilty – even though he maintains that he did not commit any crime. "Almost everyone takes a plea, and we know exactly how that works: They are scared into it and told what a great deal they'll get," she says, "as opposed to a jury, [which] could give you 30 or 40 or 50 years." That is appealing to people who don't have the money to fight in court or who are afraid of a lengthy punishment. "Taking a plea doesn't mean you're guilty," she says.

That's "absolutely" true, says Austin defense attorney Keith Hampton. "That happens all the time, particularly in sex offense cases," which are emotionally charged and many times based on "he said, she said" accusations.

The sad but generally unrecognized reality that people plead guilty to crimes they haven't committed has also been acknowledged by the courts. In a case Hampton argued before the Court of Criminal Appeals, the justices ruled in favor of a client's ability to file an appeal with evidence of his innocence even though he'd previously pleaded guilty. There are any number of reasons that a person would plead guilty, Hampton says one judge pointed out during that 2002 oral argument, none of which may have any connection to the veracity of the underlying charge.

The Science of Prosecution

According to Michael's appellate attorney, Clint Broden, at least part of what sealed Michael's fate was the testimony of state expert witness Fred Willoughby, a sex offender treatment provider who claimed to be able to testify that Michael was a "pedophile" and that he would be a "high risk" for committing another sex offense. Willoughby knew that, he testified, based on the results of the so-called "Abel Assessment," which he'd administered on Michael and on which the teen had scored poorly.

The assessment tests sexual arousal, in part, by showing a series of photo slides and asking the observer to click through the pictures. If the subject of the test lingers on a photo of a toddler, for example, it might suggest that the person has a sexual attraction to toddlers. John says he remembers also taking the test but insists he wasn't given any real instructions other than to look at photos. He said he quickly got bored, clicked through a series of them, and then stopped for a while in favor of daydreaming. Michael was given the same exam in August 1999 and, according to John, was similarly uninformed about the process and uninterested in taking the test. Instead, Michael was distracted frequently and would get up from his seat and walk to gaze out the window, leaving any number of slides on the screen for long periods of time.

Nonetheless, in court Willoughby testified that the Abel test is an "objective" measure of sexual interest; in Michael's case – a teen he said he categorized as having a "meek" and "submissive" personality – the test showed that he had a "significant sexual interest" in 8- to 10-year-old girls (exactly the age group his cousin Stephanie then fell into), an interest he said Michael "may simply be unaware of."

More important, perhaps, is that Willoughby told the court that the test was widely used across the country and had been demonstrated to provide reliable predictions of sexual interest when administered to juveniles. In fact, that was not true. The experts Willoughby cited had established just the opposite: Researchers had found only weak evidence that the test is reliable at all and, more importantly, that there had not yet been any research to determine whether it was a good diagnostic tool to use on juvenile offenders.

According to veteran licensed sex offender treatment provider Philip Taylor, the problem with Willoughby's testimony began with his conclusion that Michael Arena is likely a pedophile. That is a difficult diagnosis even under the best of circumstances, he says, and is even more controversial when used to label a juvenile. "Unfortunately, there are a lot of ignorant practitioners who diagnose pedophilia any time someone is charged with an offense against a minor," he says. "But people who study this carefully ... point out that, one, not everybody who has pedophilia commits an offense and, [two], not everybody who has committed an offense has pedophilia." Nonetheless, many "experts" will "automatically diagnose as such, and it is such a scare term," he says. "I've practiced in this area for 20 years, and I can count on less than one of my hands, out of 2,500 guys I've seen, the number of cases of pedophilia."

Taylor adds that sex offender treatment and diagnosis are areas ripe for abuse by professionals claiming to be experts. "Absolutely. It's a bird's nest on the ground. It's why people don't bring much critical thought to it," he says.

Moreover, he says, there have long been grave concerns about the use of the Abel Assess­ment – or "Abel Screen," as it's also known. It was originally designed in 1995 by Gene Abel as an alternative for the plethysmograph, a sensor that attaches to a man's penis to determine sexual arousal. That test was not very well standardized, and Abel developed his alternative, using visual recognition. Still, the test is proprietary, Taylor notes, meaning that "how it was developed, how it was normed, and how it is scored" aren't known outside of the group that works directly with Abel in Georgia. "That is one reason it does not have a good odor in the professional community," Taylor says, adding that the "Abel people have no incentive to police its practitioners." In short, he says, the results of an Abel test are "not acceptable in court any more than the plethysmograph is." (Abel Screening Inc. did not respond to a request seeking information about the reliability of the test on juveniles.)

Indeed, in 2003, Willoughby was reprimanded by the Texas State Board of Examiners of Psychologists, in part for his "failure to substantiate forensic opinions" delivered in court, according to an agency document.

No Recourse

So the testimony at Michael's punishment hearing by the state's own expert turned out to be false, and Stephanie, the only witness to say the sexual assault had ever occurred, has recanted numerous times (even after, when she was 11, the trial court threatened her with jail time for perjury if she were to contradict the testimony she gave when just 9 years old). Yet the courts have denied both Arena brothers any relief.

Broden initially filed Michael's appeal with the Bell County courts in 2007. He argued several points: not only that Stephanie had recanted her previous statements and that there was credible evidence that LaVonna had fabricated the allegations in order to avoid trouble with the law for leaving Texas with the children, but also that Willoughby had testified falsely about the validity of the Abel Assessment – false testimony that made it appear to jurors that Michael was in fact a dangerous person, a pedophile who needed imprisonment. Moreover, at Michael's trial, prosecutors emphasized Willough­by's conclusions in their closing arguments. "He's been diagnosed as a pedophile by an expert. He is at a high risk to re-offend," the prosecutor argued. "Our community simply cannot take that chance by releasing him back in that home."

The state countered that Stephanie's original statement was far more credible than her recantation. The recantation, they alleged, had actually been coerced by an unlicensed but self-described "investigator" who had been helping the Arena family try to prove John's and Michael's innocence. (Stephanie vehemently denies this.) Moreover, the state argued that it wouldn't make any logical sense for LaVonna to fabricate a story involving the cousins: "there would be a difference between falsely accusing a soon-to-be ex-spouse to gain an advantage in a custody dispute and accusing a couple of nephews," the state wrote in response to Broden's writ. "While the former might make some logical sense, the latter does not."

Most strikingly, the state argued that even if Willoughby had misrepresented the credibility and accuracy of the Abel Assessment, it didn't matter. According to the state, it was unlikely that the jurors took that testimony into account when assessing punishment for Michael Arena – an argument they bolstered using an affidavit from Michael's trial attorney, Bobby Barina, which he'd written in response to a separate point of appeal that he had rendered an ineffective defense. "In my opinion, Dr. Willoughby's testimony had zero impact on the jury," Barina wrote. Instead, it was solely Stephanie's testimony that caused the jurors to sentence Michael to 20 years, he claimed, an argument the state adopted.

Yet researchers and appeals courts have long noted the effect that scientific "experts" have on juries. As Arizona State University Law professor John W. Strong wrote in a 1992 article for Oregon Law Review: "There is virtual unanimity among courts and commentators that evidence perceived by jurors to be 'scientific' in nature will have particularly persuasive effect."

Nonetheless, Bell County District Judge Gordon Adams denied Michael's appeal. Indeed, in his findings of fact, Adams adopted whole the state's position. Stephanie's recantation "was not credible, based on the testimony of all the witnesses, confessions or admissions of John Arena, and other evidence," he wrote. More­over, he agreed that the Willoughby testimony likely had no effect on the jury.

The latest blow for the Arena family came from the 3rd Court of Appeals in July, when a three-judge panel, led by Judge Bob Pemberton, affirmed Adams' conclusions and denied Michael's appeal; Michael's lawyer, Broden, is currently preparing an appeal to the Texas Supreme Court. "I'm firmly convinced of his innocence," he said in August.

Political Kryptonite

For John, released from prison in 2005, there are few options to clear his name. Unfortunately, says Jeff Blackburn, founder and chief counsel of the Innocence Project of Texas, John and Michael Arena aren't alone. Blackburn says the IPOT receives more than 100 letters each week – 60% of all the project's mail – from individuals who say they were wrongfully convicted of sex offenses. "In these cases there is typically no biological evidence, and there is either no medical testimony," or there is the exaggerated testimony of medical and other experts, as in the Arena case. "These cases pose a very special problem for the justice system," he says. The reasons are obvious – and extremely political. "What elected judge – which is all of them in Texas – is going to consider letting one of these people go as politically safe? If you find me one, let me know," he says. "It is the classic conundrum; these cases are political kryptonite."

The answer, says Blackburn, is to reform state law in order to allow people like John to challenge convictions that were based on the use of faulty science. "There's a lot of junk science going on in these cases," he says. Indeed, he notes that often, even if a child recants testimony regarding abuse – as did Stephanie – there are plenty of "experts" out there who will say, "See, that denial proves they were abused! Yeah, OK, and your client gets convicted," he continued. "It's important, because how do you defend against that shit?"

The specter of junk science in Texas courts has been getting lots of ink lately – including in the increasingly politicized case of executed inmate Cameron Todd Willingham, put to death for the 1991 murder of his three young children in an arson fire in his home in Corsi­cana. Willingham maintained his innocence, and the question of whether the fire was in fact arson has been plaguing the courts and Texas politicians since 2004, when the first of now nine arson experts concluded that the state relied on outdated and inaccurate science to determine that the fire was arson and that, in fact, there was no evidence that the fire was anything more than a tragic accident.

The Texas Court of Criminal Appeals has recently begun to look critically at some "expert" opinions. The court recently ruled that "scent lineup" evidence (that is, evidence that a canine can match a scent from a crime scene to a particular person) is not on its own sufficient to prove guilt. In another opinion, in mid-October, the court ruled that psychological testimony regarding a capital defendant's potential for "future dangerousness" – as one of the special questions posed in death penalty cases, jurors are asked if a defendant remains a continuing risk to the public – must be based on some empirical standard.

Still, the problem of junk science is growing faster than court and legislative actions to curb potential abuses. And in sex offense cases, it often seems like anything goes. "In these cases, my God, it's basically like there are no rules," says Blackburn. Molnar agrees: "There is junk science all over the board – and there is no more junk science than is used in sex offenses," she says. "That is the junk science capital of the world – or, the junk science capital of Texas."

The Timothy Cole Advisory Panel on Wrongful Convictions – named for the state's first posthumously pardoned inmate, Tim Cole, who died in prison while serving time for a Lubbock rape he did not commit – convened this year to study the causes of wrongful convictions and to make recommendations to prevent future miscarriages of justice. In August the group released its final proposals, which include a section on reforming post-conviction DNA testing and state writ laws. The panel suggests allowing DNA testing in any case where there is untested evidence or where previous testing was done with "older, less accurate methods" and allowing inmates with claims of actual innocence to appeal a conviction "based on science that has since been falsified."

That's an important provision that could help wrongfully convicted sex offenders, many of whom have been accused of abuse in connection with a custody or other domestic dispute, says Blackburn. Allowing the courts to accept an appeal based on the validity of the science involved – like the science used against the Arena brothers by psychologist Willoughby (who is still in practice in Wil­liam­son County and still listed as a Texas practitioner using the Abel Assessment) – would "come closer to leveling the playing field," says Blackburn.

Sen. Ellis believes the panel's recommendations are a modest and important "first step" to begin repairing the reputation of Texas' criminal justice system. "In order to get those recommendations turned into legislation and passed by the Legislature, we need prosecutors, law enforcement, the governor's office, and advocates to make preventing wrongful convictions a top legislative priority," he said. "It will take a commitment from all parties to pass the legislation to create meaningful change."

It is unclear if any of the proposed changes might actually aid John and Michael Arena. Although John has been out of prison for just over five years now, unless he is able to clear his name, he will live the rest of his life as a registered sex offender, branded as having once sexually assaulted a 7-year-old girl. Like thousands of other registered sex offenders, John has been unable to find any meaningful work; without access to resources, he and his girlfriend and their children are living with his parents. Betty and Robert Arena have sacrificed much as well in their quest to help clear their sons; they lost their family business, and at present seven members of the family are living in one small mobile home.

Stephanie says she intends to continue to help her cousins in any way she can. "Mikey's still locked up, and, yeah, Johnny's out now, but look at the laws in Texas – look at the way he has to register for the rest of his life," she says. "I'm not going to give up, and neither is my family, until [the courts] finally see it my way."

John says he's scared a lot of the time. Mostly, he's scared of moving outside his safety zone in Harker Heights where people know him. He wants to get a real job, move into his own home, raise his young family. But he also doesn't feel that he is able to take too many risks to make that happen – like leaving Harker Heights. "I was a kid when I went to prison," he says. "Now I'm a grown man, but I'm still scared."

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