The hard part is saying it with a straight face

Chuck Lindell with the Austin American Statesmen recently reported about a case in the Texas Supreme Court involving claims of both actual innocence and junk science. The headline dealt with the "pedophilia test," which is commonly referred to as the "Abel" test after its founder. It is administered by showing the subject increasingly graphic pictures involving children, and seeing  how long they look at each picture. The test was never meant to diagnose pedophilia, and its use has been limited in recent years. The question was what that meant in this case.

Michael Arena had been charged with sexually assaulting his two cousins - one male, and one female. They have since recanted, and it appears there is evidence that their mother had a habit of having her children make allegations of sexual assault whenever it looked as if her custody was in question. Despite that, the trial judge found the recantation was not credible.

That left Mr. Arena's future dependent on his attack on the improper use of the Abel test. He was a sixteen old at the time who had no prior record and a promising football player. After his conviction the prosecutor urged the jury to send him to prison for a long time to protect society from someone who had been diagnosed as a pedophile. The jury agreed, and sentenced him to prison for 20 years.

None of that is all that unusual - unfortunately. What stood out to me though was the prosecutor's defense of the verdict, claiming Mr. Arena could not prove he was harmed by any error. Apparently in his world being falsely labeled as a pedophile is not that big a deal.  That was a little much for the even the judges, with one justice (Eva Guzman) stating that's "a tough argument to accept".

Unfortunately this happens time and time again. Prosecutors are trained to defend the verdict at all costs - even when it is clearly nonsensical. They really have no reason not to, since courts go along with them far too often. If when they do something wrong it's excused more often than not as "harmless".  Maybe this case is different because it ended up in the Texas Supreme Court (because it was a juvenile case) and not the Court of Criminal Appeals; Supreme Court justices don't see prosecutors on a regular basis, and perhaps expect them to act like other lawyers.

Another thing this case points out is the huge barrier a defendant has to overcome to establish actual innocence. A recantation is not enough, even when supported by the evidence. If the trial court doesn't accept it, that is generally the end of the case.Maybe that too will be questioned by the Supreme Court.

This is a sad case that cries out for relief. Mr. Arena's future can never be restored, and he will always be labeled as a sex offender. A good start though would be to let him out of prison. Let's hope the Supreme Court does just that.

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