A Texas man is currently 13 1/2 years into a 20-year sentence for molesting his two young cousins. The allegations from the children were corroborated by a bit of pseudo-science quackery worthy of a spot in the forensics hall of shame.
Michael Arena was summoned to a psychologist’s office to measure his sexual attraction to children.
The test given required the 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. The results, according to the prosecution-hired psychologist who administered the test, showed Arena to be a pedophile who was a “high risk” to strike again.
Bell County prosecutors hammered the finding during Arena’s 1999 trial, urging jurors to choose prison over probation to protect children from a teen “diagnosed as a pedophile by an expert.” The jury responded with a 20-year sentence.
The cousins have since recanted their testimony, and have said they were pressured by their mother to say they’d been molested. She was fighting a custody battle at the time. As you might imagine, the swimsuit photo test has since been shown to be nonsense.
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.
That was the evidence against Arena. The allegations from his two cousins and the test. The test has been shown to be a fraud. The cousins have retracted their allegations. Yet Arena is still in prison. Two judges have upheld his conviction since all of this has come out, and of course the prosecutors aren’t relenting.
The good news is that by the Statesman account, the Texas Court of Criminal Appeals at least appeared skeptical of Arena’s questioning during oral arguments.
One other item worth noting. The test, called the Abel Test, is run by a for-profit company. The owner of the rights to the test (eventually) said it was never intended to diagnose pedophiles, but to aid in the treatment of people already diagnosed. But he also refuses to release the test’s methodology, even for criminal cases, claiming that the information is proprietary.
We’ve seen this with breath test machines in DWI cases as well. I just don’t see how this can be acceptable. If you’re going to allow your technology to be used to put people in prison, it seems to me that anything and everything about how the technology works and how the results are interpreted has to be subject to cross-examination.
Any criminal law Agitatortots out there know if the Supreme Court has heard a Confrontation Clause case on the use of proprietary technology in criminal cases? I don’t recall coming across one in my reporting.
(Thanks to Ted Frank for the tip.)