One reason Texas convicts so many innocent people is our lax standards for allowing the State to admit “scientific” evidence at trial. Given the State’s nearly limitless resources for experts, supply is racing to catch up with demand, whether or not the science is sound or not.
Trial courts are supposed to be the gatekeepers of scientific evidence and limit what the jury can hear. That sounds great in theory, but in practice the State almost always gets in whatever “expert” they designate. It was this atmosphere that allowed the complete bullshit “science” of “dog scent lineups” to pollute our courtrooms.
The latest victim of junk science is Michael Arena. Michael was wrongfully convicted (his “victim” has completely recanted, stating that she was coerced by her mother to lie) of sexual assault, and sentenced to 20 years.
The back story is worth reading and highlights how easily sexual assault allegations can be manufactured to gain advantage in child-custody cases. Michael was a juvenile at the time, and his writ of habeas corpus (basically saying “let me out of jail I’m freakin’ innocent!”) went to the Texas Supreme Court, instead of the Court of Criminal Appeals (which is no small distinction).
You’d think that when the State’s star witness admits to lying that would be enough to get you out of prison. In Texas, not so much. Our State’s conviction machine has no reverse gear.
On to the junk science…
One of the areas ripe with pseudo-science nonsense is when “experts” try to guess how dangerous a defendant might be in the future. The truth is, no one really knows what someone is going to do in the future. But the State has unlimited funds to throw around, and an industry has sprouted up to give the State what they want, “future dangerousness” testimony.
In Michael’s case, during punishment, an “expert” testified that Michael underwent an Abel Assesment which showed, with 85% accuracy, that Michael was a dangerous pedophile who would more than likely reoffend. The jury took notice and sentenced Michael to 20 years in prison.
What is an Abel Assesment? Basically, an individual looks at pictures on a computer screen. If you look too long at the pictures of children, you’re a pedophile. You’re probably not surprised to learn that the Abel has a very high error rate. From the opinion…
See United States v. Birdsbill, 243 F.Supp.2d 1128, 1135-36 (D. Mont. 2003) (describing later version of the Abel Assessment’s error rates of 21-22% and 32% as “poor” and finding test unreliable); United States v. White Horse, 177 F.Supp.2d 973, 975 (D. S.D. 2001) (stating that 24% false negative on Abel Assessment “does not assist the jury” and finding test inadmissible); State v. Ericson, 13 A.3d 777, 781-82 (Me. 2011) (affirming trial court’s exclusion of testimony regarding Abel Assessment and stating that error rate between 21% and 32% raises significant concern about reliability).
The court concluded that the “expert’s” Able assesment testimony should not have been allowed, and that the “expert” did not testify truthfully. The case was remanded for a new sentencing hearing.
Unfortunately, this case may not be the death of Abel in Texas, as this case was uniquely focused on juvenile defendants. However, if you are faced with an Abel “expert” make sure your attorney is familiar with the latest research and this opinion.