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Young Lawyer Spotlight

Austin Young Lawyer Dustin Howell
By John W. Shaw, Legal Aid of Northwest Texas

The fact that a bright young associate, formerly of Baker Botts, was involved in an important case before the Texas Supreme Court may not come as a surprise. But the subject of the case and the fact that the associate—Dustin Howell, a TYLA director from Austin—handled it pro bono might.

In 1999, 15-year-old Michael Arena was adjudicated delinquent for committing sexual assault against his younger cousin based partly on that cousin’s testimony. Dr. Frederick Willoughby, a licensed psychologist and registered sex-offender treatment provider, also testified as an expert. Using a test called the Abel Assessment, Willoughby identified Michael as a pedophile with a high risk to reoffend. The jury sentenced Michael to 20 years of confinement.

Nearly two years later, Michael’s cousin recanted her testimony. Two years after that, Willoughby admitted to misstating the research on the Abel Assessment: It had never been accepted as valid for use on adolescents, and the only peer review of such a use had concluded that the results were “not significantly better than chance.” The Texas State Board of Examiners of Psychology officially reprimanded Willoughby for his misconduct in Michael’s trial.     

Michael’s family, in particular his mother, was unwilling to give up on his innocence. The family contacted 20/20, which aired Michael’s story in January 2006. Unfortunately, the family had no money to secure legal representation for any additional appellate efforts.

Luckily for Michael, Clint Broden, a board-certified criminal-defense lawyer from Dallas, was watching. He agreed to help Michael pro bono, but both the district court and the court of appeals denied the petition for a writ of habeas corpus. The only remaining appellate remedy was a petition to the Texas Supreme Court, which had jurisdiction because Michael was adjudged delinquent as a juvenile. It was at this point that Broden reached out to Baker Botts and Dustin Howell, a 2008 graduate of Texas Tech University School of Law.

In November 2010, Broden, Howell, and retired Texas Supreme Court Justice Deborah Hankinson filed Michael’s petition for review with the Texas Supreme Court. The petition concentrated primarily on the Willoughby’s false testimony. The Supreme Court granted the petition and heard argument on January 10, 2012.    

The case was Howell’s first appellate argument. He argued that the State’s use of Willoughby’s false testimony violated Michael’s due process rights—that the sole grounds for Willoughby’s testimony was the result of the Abel Assessment and that Willoughby gave the testimony even though the test was not reliable for use on adolescents. He further argued that Michael did not to have to disprove every possible sentencing scenario, but instead had to show only that the false testimony affected the jury’s decision.

In May, the Supreme Court issued its decision in Michael’s case, In re M.P.A. It held that Willoughby’s false testimony contributed to Michael’s sentence and that he was therefore entitled to a new disposition hearing. Michael was released this June after spending more than 13 years in prison. Shortly before this article was published, Michael and the Bell County Attorney agreed to a disposition of time served and a stipulation that Michael would not have to register as a sex offender, as detailed by an article in the Austin American-Statesman.

Howell freely admits that working on this matter affected him both personally and professionally. He points out that this pro bono representation allowed him to get hands-on experience that could not have otherwise gotten in his young legal career. He believes that our justice system provides a means of righting wrongs, regardless of the hard work and time it may take. Howell credits Michael’s mother’s perseverance in helping Michael’s case. She was the one who continued to investigate the case, uncovered Willoughby’s false testimony, and interested 20/20 in Michael’s case. Unfortunately, she died shortly before oral arguments at the Supreme Court.

Howell recently became an Assistant Solicitor General for the State of Texas. He looks forward to continuing his work as an appellate lawyer for the citizens of Texas.