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Arena Case Meets the Supremes

Will the Supremes find innocence sufficient for vindication?

By Jordan Smith, Fri., Jan. 20, 2012

Michael Arena
Michael Arena
Photo by Jana Birchum

Should Michael Arena be granted a new sentencing hearing? Or should he be declared innocent by the Texas Supreme Court – finally cleared of a 20-year sentence for a sexual assault that no one, not even the alleged victim, now says even happened? Those are among the questions now before the justices who heard oral arguments on the case Jan. 10. Arena was sentenced to 20 years in prison in 1999, when he was just 16, for the alleged sexual abuse of his then-7-year-old cousin, Stephanie; Stephanie has vociferously denied that any abuse ever took place and said instead that her mother, going through a bitter divorce from Michael's uncle, compelled her to lie about the abuse in order to keep herself out of jail for violating court orders.

The court has several issues before it – including whether the expert testimony of Williamson County psychologist Fred Wil­lough­by was improperly allowed into evidence at Arena's sentencing hearing. Wil­lough­by testified that a psychological examination of Arena using the "Abel Assessment" demonstrated that he was a pedophile and would be dangerous if released on probation. The problem, in part, is that the Abel Assessment – a visual test that purports to identify sexual preference in young children – has not been shown to be effective for determining sexual leanings of juveniles. (The State Board of Examiners of Psycholo­gists subsequently sanctioned Willoughby for his failure to substantiate in-court opinions.)

The state has argued – as it did last week – that Willoughby's inaccurate testimony had no impact on Arena receiving two decades behind bars. The judges on the state's highest civil court (which also is the final arbiter of criminal cases involving juveniles) appeared skeptical: Justice Debra Lehrmann asked if James Mur­phy, the attorney representing the state (in this case, Bell County, where Arena is from), was suggesting that Willoughby's testimony was not false. "No, his statements were false," Murphy responded. Rather, he said, they simply didn't influence the jurors into convicting Arena, since Willoughby testified at the punishment phase of the trial. Moreover, Murphy asserted, the jurors weren't swayed by the testimony during sentencing either – he noted that Arena's trial attorney, Bob­by Barina, has said as much in post-conviction legal proceedings.

The judges were not impressed – noting that Barina's statements might be self-serving since he was defending himself against a claim that he'd provided Arena with ineffective legal counsel. Justice Eva Guz­man pointed out that prosecutors used Willoughby's statements during their closing arguments in the guilt phase in order to raise the specter of Arena as a dangerous teen – "Is that not a use of false testimony?" she asked; Chief Justice Wallace Jefferson said that it would be "highly influential to a jury" to hear Willoughby's false pronouncements.

On that question of improper sentencing, it appeared there was no dissension among the judges. But whether Arena should be declared actually innocent, based largely on the fact that his cousin Stephanie has – repeatedly and adamantly – recanted her childhood testimony implicating her cousin in acts of sexual abuse, seems less apparent. The Third Court of Appeals wasn't swayed by Stephanie's recantation, Murphy said, noting that Stephanie had also accused Michael's brother, John, of the same conduct, to which John pled guilty.

Indeed, John did so in exchange for a lighter sentence, a decision he told the Chron­icle in 2010 was prompted in part by police pressure to confess and in part by an alleged promise that if he pled guilty, Michael would not be charged. (John served seven years and is out of prison.) Stephanie has said that neither brother ever assaulted her. (For more on the case, see "Criminally Innocent," Nov. 5, 2010.)

While Murphy told the court that Steph­a­nie's recantation was not believable in part because John Arena confessed and pleaded guilty, Guzman was not so sure. "In custodial disputes it is not unusual to have these kinds of allegations of abuse," she noted. It happens "all the time." Moreover, Justice Nathan Hecht questioned whether Arena would ever have been tried at all if prosecutors had known then that Stephanie would recant and Willoughby would testify falsely. Given what we know now, it "would be very hard for a jury to convict," Hecht said. "In fact, a prosecutor wouldn't even bring" such a case.

Still, the court seemed to struggle with how much deference should be given to the lower courts in determining whether Arena could be cleared on grounds of actual innocence. The state, of course, argues that great deference should be afforded to the jurists who have, thus far, concluded that neither the recantation nor the Willoughby testimony have cast grave doubt on Arena's conviction. But Arena's attorney Clint Bro­den is certain that Arena is, in fact, innocent of the alleged crime. "This is an innocent man who has spent 40 percent of his life in prison," Broden said. "It is rare that I represent an innocent person," he went on. "I can say, without any hesitation, [that] I do in this case."

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