The Austin Chronicle

Sex Abuse Appeal Goes to Texas Supremes

By Jordan Smith, December 10, 2010, News

Lawyers for Michael Arena, who in 1999 was convicted of sexually abusing his then-7-year-old cousin – a crime that his cousin maintains never happened – are asking the Texas Supreme Court to review a lower court decision denying the now 27-year-old's appeal. At issue, in part, is whether the expert testimony of psychologist Fred Willoughby was improperly allowed as evidence at the teenager's sentencing hearing. Allowing that ruling to stand, they argue, would jeopardize countless future cases involving expert testimony.

Willoughby testified that a psychological examination called the "Abel Assess­ment" had been tested and was accurate to determine the sexual preferences of juveniles. According to Willough­by, the test was credible and, in Arena's case, demonstrated that the teen – 14 years old at the time of the alleged crime – had an attraction to young girls the age of his cousin, Stephanie. Accord­ing to the assessment, said Wil­lough­by, Arena was likely a "pedophile" and would probably reoffend if not sent to prison.

As it happened, however, the test had not been demonstrated to be effective for juveniles, and Willoughby was subsequently sanctioned in 2002 by the Texas State Board of Examiners of Psychologists in part for his "failure to substantiate forensic opinions" offered in the Arena case. That information was not available to Arena's jury, which handed the juvenile 20 years in prison.

The trial court denied Arena's direct appeal of the case, as did the state 3rd Court of Appeals. In its opinion this summer, the appeals court agreed with the trial court that even if Willoughby had testified falsely, it didn't impact the jury. Now, in an appeal filed Nov. 23, Arena's lawyer Clinton Broden of Dallas is asking the Supremes to reconsider the 3rd Court's position. The appeals court's "mishandling" of the standard for allowing expert testimony is so egregious, he argues, that to allow it to remain uncorrected would negatively impact hundreds of other cases to come. "To argue that Willoughby's testimony did not result in a longer sentence strains the limit of reason," Broden wrote.

The state has waived its right to respond to the latest appeal, Broden wrote in an e-mail to the Chronicle. Still, the court accepts very few such petitions for review, so there is no guarantee that they will even take the case, he said.

Meanwhile, Arena has been denied for parole each time he's come up as eligible, primarily because he refuses to admit guilt; unless he is granted relief by the courts, he is unlikely to be released until 2019. (For more on the story, see "Criminally Innocent," Nov. 5.)

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