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#343 Jason Flom with Brian Neirynck · Wrongful Conviction

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Speaker 1: Hey, it's Jason, just letting you know that Wrongful Conviction
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0:27
Speaker 1: one week before everybody else. So get in the know
0:31
Speaker 1: one week early with an Apple Plus subscription. Brian Derek
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Speaker 1: and Roberta Smedley met in Plymouth, Indiana in nineteen ninety four,
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Speaker 1: and before long they were inseparable. Two years later, they
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Speaker 1: had a son, Michael Scott. By the time the boy
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Speaker 1: was almost three years old, the relationship at con sour.
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Speaker 1: Roberta kicked Brian out of the house, got a restraining order,
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Speaker 1: and cleaned out his bank account. Eventually, a bitter custody
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Speaker 1: battle ensued. In June of two thousand, after the boy
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Speaker 1: had returned from a visit with Brian, Roberta reported to
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Speaker 1: police that Michael Scott had told her that he had
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Speaker 1: been molested by his father. The Department of Child Services
1:11
Speaker 1: investigated the allegations. Brian's visitation rights were suspended and Michael
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Speaker 1: Scott was sent to play therapy. Three years later, at trial,
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Speaker 1: Roberta and the therapist repeated the accusations against Brian. Michael Scott,
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Speaker 1: now six years old, testified to say that his father
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Speaker 1: had in fact done what his mother had alleged. Brian's
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Speaker 1: only defense was to say that he loved his son
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Speaker 1: and would never hurt him against the testimony of an
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Speaker 1: impressionable child. Three years worth of notes and videotape therapy
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Speaker 1: sessions probably helped nothing of interest to the jury. But
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Speaker 1: this is wrongful conviction. Welcome back to ronful conviction. Today's
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Speaker 1: story comes to us from Saint Joseph's County, Indiana, and
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Speaker 1: it's about one of the most horrific things that anyone
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Speaker 1: can imagine as a parent. And I'm speaking as a parent,
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Speaker 1: but this would be horrific to any normal human person.
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Speaker 1: I'm talking about the crime of child molestation. And the
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Speaker 1: thing is it never happened. It was a story cooked
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Speaker 1: up as ammunition for a custody battle, and unfortunately, an
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Speaker 1: innocent child was used to bolster the charge by being
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Speaker 1: groomed to testify against his own father. That's the real
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Speaker 1: child abuse. By the way, our guest today is Brian Erik. Brian,
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Speaker 1: welcome to WRON for conviction.
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Speaker 2: Thank you.
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Speaker 1: And also with us is Cynthia Carter, Indiana criminal defense
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Speaker 1: attorney and self described recovering public defender who was Brian's
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Speaker 1: post conviction attorney. So Cynthia welcome, Thank you.
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Speaker 3: Jason. Really great to be here.
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Speaker 1: Brian. Let's start with you. Where did you grow up?
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Speaker 4: Right outside of South ben Indiana, little town called Walkerton.
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Speaker 4: It was just a small town. My family could have
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Speaker 4: been considered lower middle class, good family structure, mom, dad, brother.
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Speaker 1: And then around nineteen eighty four you started seeing Roberta Smedley.
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Speaker 1: Where did you two meet.
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Speaker 4: At the Blueberry Festival in Plymouth, Indiana. We were together
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Speaker 4: I think six years overall for the most part, it
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Speaker 4: was always good.
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Speaker 1: And a couple of years later you found out that
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Speaker 1: Roberta was pregnant. Were you excited about becoming a father?
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Speaker 4: Yeah, it was great. I was looking forward to being
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Speaker 4: a dad. You know, it's every boy's dream. I assume
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Speaker 4: every boy's dream. It was mine through the pregnancy. I
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Speaker 4: went to every one of the doctor meetings, birthing class,
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Speaker 4: and I was there when he was born. It was
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Speaker 4: the greatest thing ever in my life.
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Speaker 1: So now you, Roberta, and your son Michael Scott are
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Speaker 1: a family, and for all intents and purposes, it sounds
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Speaker 1: like life was going pretty well for a while, right.
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Speaker 1: I mean, you had a steady job and we're building
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Speaker 1: a life together.
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Speaker 4: I was working in a machine shop as a machinist
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Speaker 4: assembler and going to work every day, ten twelve hour
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Speaker 4: days and coming home every night to my family. Michael
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Speaker 4: Scott and I had a great relationship. I mean I
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Speaker 4: was always involved in his life. He was the center
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Speaker 4: of my life. And one day I come home from
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Speaker 4: work and she tells me you've got to get out.
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Speaker 4: And I said, what do you mean I got to
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Speaker 4: get out? She says, well, I got a restraining order
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Speaker 4: against you and you've got to move out.
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Speaker 1: This just came out of the blue, without any warning
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Speaker 1: at all. Do you have any idea what that was
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Speaker 1: all about.
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Speaker 4: She just always got whatever she wanted, and you know,
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Speaker 4: she wanted a child and she got it and then
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Speaker 4: got rid of me. So I ended up going out
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Speaker 4: to my dad's and staying with him until I finally
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Speaker 4: got an apartment and one of my ex girlfriend came
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Speaker 4: back into my life and his life, and she just
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Speaker 4: adored Michael Scott.
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Speaker 1: Yeah, your girlfri So Michael Scott was around three years
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Speaker 1: old at this point and living with his mother full time.
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Speaker 1: But you and Roberta had worked out some kind of
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Speaker 1: visitation agreement, right.
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Speaker 4: I was there every Wednesday and every other weekend. I
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Speaker 4: had him and we did everything we could together. We'd
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Speaker 4: fill the car up with balloons. I had a four
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Speaker 4: door of Crown Victoria and we'd go down the road
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Speaker 4: and roll the windows down and the balloons would fly
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Speaker 4: around and fly out. It was wonderful. Michael Scott loved
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Speaker 4: being with me. I bought a house Judy and I
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Speaker 4: moved into it. It was a nice two story house.
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Speaker 4: Michael Scott would come over. He had his own bedroom.
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Speaker 4: He had a walk in closet that we were sitting
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Speaker 4: there with markers and right all over the walls, throw
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Speaker 4: the ball up and down the steps, and like I said,
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Speaker 4: I thought we had it going on. It was more
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Speaker 4: stable than his house. You know. He would always say,
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Speaker 4: Mom's going out drinking or Mom was drunk.
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Speaker 1: So around this time is when you decide to hire
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Speaker 1: a lawyer, Greg Blandford and push for full custody of
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Speaker 1: your son.
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Speaker 4: I wanted to have him with me, and I thought
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Speaker 4: it was better for him to be with Judy and I,
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Speaker 4: you know, I felt it was more safe. At one point,
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Speaker 4: Roberta had sent my mom a picture of Michael Scott
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Speaker 4: and it was a picture of Michael Scott and his
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Speaker 4: little buddy Max, and they were both drinking a beer.
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Speaker 4: So I presented that to the court. I think that's
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Speaker 4: what flipped her switch to make up all these lies.
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Speaker 1: In June two thousand, that's when you find out just
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Speaker 1: what kind of lies should be willing to make up.
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Speaker 4: Then I come home from work one day and Judy
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Speaker 4: meets me at the door and she says, get in
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Speaker 4: the house. She says, there's a warrant for your arrest,
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Speaker 4: And I said for what She says, They said that
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Speaker 4: you did something to Michael Scott. Right.
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Speaker 3: The police report was June second, two thousand, and the
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Speaker 3: police talked to Roberta and she reported that the child
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Speaker 3: had reported that Brian was doing things to him and
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Speaker 3: that he didn't like his father's peepee.
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Speaker 4: And so I called my family attorney, the one that
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Speaker 4: was working with me to get custody, and he says,
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Speaker 4: they're alligating that you did something to Michael Scott sexually.
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Speaker 4: And I said, that's impossible, Greg, it didn't happen. He said, well,
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Speaker 4: this is what's happening.
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Speaker 1: These are really serious allegations, of course, but initially there
7:32
Speaker 1: was a wide gap between what Roberta alleged that Michael
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Speaker 1: Scott had said and what Michael Scott was actually saying.
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Speaker 4: So then I find out that what he's saying is Doggie,
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Speaker 4: Dad and grass. That's all he was saying. I mean,
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Speaker 4: it was nothing. Everybody's just kind of laughing about this
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Speaker 4: because they know Brian. They know this isn't possible. This
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Speaker 4: was all craziness.
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Speaker 1: When these kinds of allegations are leveled, Apartment of Children
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Speaker 1: Services or DCS must get involved by law. And there
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Speaker 1: was a physical examination done too.
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Speaker 3: And they didn't notice any injury to the child, just
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Speaker 3: some redness and there was no internal examination done, but
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Speaker 3: there were no injuries to Brian's son.
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Speaker 1: Michael Scott was interviewed by a therapist at a child
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Speaker 1: abuse investigation center called the Casey Center.
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Speaker 3: They interviewed Michael Scott and he says, my dad don't
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Speaker 3: do nothing to me. I mean, this was on video
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Speaker 3: and they're trying to get him to say something is
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Speaker 3: not saying anything.
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Speaker 1: So these sessions were videotaped, but Brian's attorney never even
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Speaker 1: reviewed them or presented to the court during his trial.
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Speaker 1: But this is what we know now, So it sounds
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Speaker 1: like the allegations were not being made by the alleged victim,
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Speaker 1: Michael Scott, but rather just coming from the mind of Roberta. Nevertheless,
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Speaker 1: Brian's visitation rights were suspended and he wasn't allowed to
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Speaker 1: see his son. Then in October two thousand, they stopped
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Speaker 1: the investigation because thing had really come out of it,
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Speaker 1: But it sounds like Roberta was still not anywhere near
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Speaker 1: letting up with her story.
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Speaker 3: It's interesting because the allegations actually evolved over time. When
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Speaker 3: the mother first spoke to the police, she said she
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Speaker 3: was wiping the child after he went to the bathroom
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Speaker 3: and the child supposedly said, don't put your finger there,
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Speaker 3: that hurts. And then the things that Brian mentioned about
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Speaker 3: Daddy dog grass, So that's what led to the initial
9:31
Speaker 3: physical examination. Well, then come November of two thousand, the
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Speaker 3: allegation changed. Then the allegation was that he put his
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Speaker 3: peep in my mouth, So that was a totally different
9:44
Speaker 3: allegation than what was made in the first place.
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Speaker 4: That went on for over a year, just those allegations,
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Speaker 4: and then the other warrant came up that says, oh,
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Speaker 4: we have enough. They want to grand jury, we have
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Speaker 4: enough to try him criminal.
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Speaker 1: During that year, unbeknownst to you, Michael Scott was being
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Speaker 1: sent to this place called Holy Cross Counseling Center for
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Speaker 1: play therapy once a week, where they were basically feeding
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Speaker 1: him the story that ROBERTA made up that his daddy
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Speaker 1: had been touching him and doing things to him. Basically,
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Speaker 1: let's call it what it was, brainwashing and indoctrinating this
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Speaker 1: poor little child with all of these horrible lies about
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Speaker 1: anal and oral sex.
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Speaker 3: There absolutely wasn't doctor nation that was going on. And
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Speaker 3: the whole time that this play therapy, it wasn't just
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Speaker 3: therapy therapy, it was play therapy. Brian was not allowed
10:40
Speaker 3: to see his son. The child was being groomed to
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Speaker 3: testify against Brian. There was definitely some leading questions and
10:50
Speaker 3: they even went so far as to give him a
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Speaker 3: power badge and a policeman ring, and it was suggested
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Speaker 3: that this was going to help him tell the truth.
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Speaker 3: According to the notes anyway, from the therapy, they even
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Speaker 3: gave him bad guy spray to put on the windows.
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Speaker 3: I think by the time the trial came around, he
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Speaker 3: wasn't even calling his father dad anymore. He called him Brian.
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Speaker 3: And the expert witnesses that we used said that that
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Speaker 3: was evidence of demonization of the person.
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Speaker 1: But none of these notes from the quote unquote play
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Speaker 1: therapy and those videotapes that we mentioned earlier, none of
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Speaker 1: that ever was brought up in the trial. The judge
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Speaker 1: didn't know about them, the jury never heard about them.
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Speaker 1: Why in the world is that.
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Speaker 3: The public defender that handled Brand's case didn't obtain those notes.
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Speaker 3: He did not even put the bare minimum of effort,
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Speaker 3: no subpoena, no nothing.
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Speaker 1: And later on we'll hear the story of how you
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Speaker 1: dug up all of these records. So let's get back
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Speaker 1: to the initial proceedings. On October twenty nine, two thousand
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Speaker 1: and one, you were indicted by a grand jury on
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Speaker 1: two counts of child molestation Class A oral sorodomy, which
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Speaker 1: at the time was the highest level felony short of
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Speaker 1: murder and Class C, which is finally you were arrested,
12:02
Speaker 1: then let out on a five thousand dollars bond, and
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Speaker 1: a public defender, Brian May was assigned to represent you
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Speaker 1: at trial.
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Speaker 4: Well, Judy and I we tried getting a hold of
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Speaker 4: Brian May to set up meetings so that I could
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Speaker 4: get with him, you know, and forty one times I
12:16
Speaker 4: called him and never got an answer, never got a reply.
12:21
Speaker 4: Finally I was allowed a visit with him when I
12:23
Speaker 4: went in with all these notes, but everything that I
12:26
Speaker 4: had on my notes, he was just blown it away.
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Speaker 4: You know, that don't matter, That doesn't matter, This doesn't matter.
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Speaker 4: As I know, that's all that he had to go
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Speaker 4: on in my case was my notes. I only met
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Speaker 4: with him, I believe, two times before the trial.
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Speaker 1: And we should also mention that your lawyer from the
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Speaker 1: Cussy dispute, Greg Blandford, had continually offered to help Brian
12:49
Speaker 1: May with these criminal charges. He was, of course intimately
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Speaker 1: acquainted with your case and well aware of Bird's mindset,
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Speaker 1: but apparently his offer was ignored. All started in January
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Speaker 1: two thousand and three at Saint Joseph County Superior Court,
13:03
Speaker 1: and again Brian was being tried on two felony counts
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Speaker 1: of sexual assault of his own son, who by now
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Speaker 1: is six years old.
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Speaker 3: So the state presented evidence from Linda Taylor, who was
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Speaker 3: the second play therapist. They presented evidence from the mother,
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Speaker 3: the Casey Center lady, but not the videos. The videos
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Speaker 3: would have actually been helpful to Brian. I think I
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Speaker 3: don't believe his public defender ever even looked at the videos,
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Speaker 3: because I had to obtain those on my own. And
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Speaker 3: the public defender not only did he not investigate the case,
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Speaker 3: he didn't cross examine the witnesses. I believe Linda Taylor
13:43
Speaker 3: was not asked one single question on cross examination, which
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Speaker 3: just blows my mind.
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Speaker 1: Yeah, this defense attorney, Brian May, he did no discovery
13:52
Speaker 1: and now he's not cross examining. Was he just unable
13:56
Speaker 1: to handle his caseload or was he, like maybe on
14:00
Speaker 1: the prosecution's payroll. I mean, was this guy doing anything
14:05
Speaker 1: at all to help you at trial?
14:07
Speaker 4: Well, my trial was a three day trial and he
14:12
Speaker 4: fell asleep sitting next to me during the trial three times,
14:18
Speaker 4: and one of the times the judge called him out
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Speaker 4: on it. He walked him up and told him, can
14:26
Speaker 4: we have you being attentive? Man? It says pretty much
14:29
Speaker 4: everything that he did for me.
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Speaker 1: Jesus. Okay, so you did get up there to defend yourself.
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Speaker 1: How did that go?
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Speaker 4: Brian may never asked me if I was even guilty
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Speaker 4: or innocent, if.
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Speaker 3: Your theory is innocence, which in this case that was
14:43
Speaker 3: always the theory. Brian didn't do this. If you put
14:47
Speaker 3: your clan on the stand under those circumstances, you absolutely
14:50
Speaker 3: have to ask them whether they did it or not,
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Speaker 3: because if you don't ask the question, then you're not
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Speaker 3: only planning a red flag in the minds of the jurors,
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Speaker 3: but you're also planning a red flag in the mind
15:01
Speaker 3: of the Court of Appeals if it ever gets to
15:03
Speaker 3: that phase, which of course it did, because the Court
15:06
Speaker 3: of Appeals may make the erroneous presumption in this case
15:09
Speaker 3: that the reason the attorney didn't ask the question is
15:12
Speaker 3: because the attorney may have known otherwise and didn't want
15:15
Speaker 3: to commit an ethical violation by eliciting perjury.
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Speaker 4: So I had to pipe up and say I didn't
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Speaker 4: do this. You know, I love my son, I did
15:25
Speaker 4: not do this.
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Speaker 1: To put this public defender in the same category of
15:30
Speaker 1: ineffective council that we've covered on this show would be
15:32
Speaker 1: unfair to your garden variety in effective council. So there
15:37
Speaker 1: you were on your own against ROBERTA and the state
15:41
Speaker 1: with their almost unchecked power. They had child psychology professionals,
15:45
Speaker 1: an allegedly grieving mother, and the testimony of a six
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Speaker 1: year old boy who had been coached and coerced over
15:53
Speaker 1: the course of three years to repeat these horrific lies
15:57
Speaker 1: about his own father.
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Speaker 3: Whenever a charge like this is brought before a jury,
16:04
Speaker 3: they're disgusted by the charge, and I think that they
16:06
Speaker 3: will err on the side of believing the child. I
16:10
Speaker 3: think had they been given the actual evidence that was available,
16:14
Speaker 3: what wasn't used, and had the state's witness has been
16:17
Speaker 3: exposed to not even vigorous but just to adequate cross examination,
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Speaker 3: I think it would have been a totally different outcome
16:23
Speaker 3: for Brian.
16:24
Speaker 1: But the outcome here was sadly predictable. So on January fifteenth,
16:28
Speaker 1: two thousand and three, you were convicted of Class A
16:31
Speaker 1: child molestation and subsequently sentenced to forty years in prison. Brian,
16:36
Speaker 1: can you take us back to that horrible, horrible moment
16:39
Speaker 1: when they came back with the verdict.
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Speaker 4: Oh yeah, that's the moment you'd never forget My Then
16:46
Speaker 4: Judy and I had gotten married. I heard Judy in
16:49
Speaker 4: the courtroom scream out. I mean, it's a numbing feeling that,
16:55
Speaker 4: you know, if you're guilty, you deserve it. If you're innocent,
16:58
Speaker 4: why the hell would you deserve something like that.
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Speaker 1: The Pacers Foundation is a proud supporter of this episode
17:17
Speaker 1: of Rawful Conviction and of the Last Mile organization, which
17:20
Speaker 1: provides business and tech training to help incarcerated individuals successfully
17:24
Speaker 1: and permanently re enter the workforce. The Pacers Foundation is
17:28
Speaker 1: committed to improving the lives of Hoosiers across Indiana, supporting
17:31
Speaker 1: organizations that are dedicated primarily to helping young people and students.
17:36
Speaker 1: For more information on the work of the Pacers Foundation
17:39
Speaker 1: or the Last Mile program, visit Pacersfoundation dot org or
17:42
Speaker 1: the Lastmile dot org.
17:51
Speaker 4: All you know was you're supposed to grow up to
17:54
Speaker 4: be a good man. You're supposed to have a good
17:57
Speaker 4: job and take care of your family. You know, you
18:00
Speaker 4: don't pay attention to the legal system. You don't have
18:03
Speaker 4: any need to really know it. You know, as long
18:05
Speaker 4: as you abide by the laws that you've been taught
18:09
Speaker 4: all your life, but you are also taught that you know,
18:13
Speaker 4: prison's a bad place. Now you have to face this.
18:17
Speaker 4: Now you're going into something you have no idea about.
18:19
Speaker 1: I mean not to get into this, but we all
18:21
Speaker 1: know how dangerous that place is for someone who's been
18:24
Speaker 1: convicted of what you were, you know, framed for what
18:28
Speaker 1: happened when you first got to prison.
18:31
Speaker 4: I got put into what's called APOD, which is where
18:35
Speaker 4: the high profile and the sex charges go, kind of
18:40
Speaker 4: like protective custody. I never went outside for I think
18:44
Speaker 4: it was nine months. I have been a professional person
18:47
Speaker 4: all my life, never had a reason to know what
18:52
Speaker 4: it's like behind the walls. But the Lord seeing a
18:57
Speaker 4: purpose for me to be taken out of that life
19:00
Speaker 4: and put into the other one. And I believe he
19:02
Speaker 4: did have a purpose for me going there. You know.
19:05
Speaker 4: I was a part of the PLUS program.
19:09
Speaker 1: And PLUS stands for Purposeful Living Units SERVE and it's
19:12
Speaker 1: a terrific program. As I'm led to understand.
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Speaker 4: It was really a wonderful thing. We won best prison
19:18
Speaker 4: program through the world many years. I was the clerk.
19:22
Speaker 4: You had to go to these classes, but me as
19:25
Speaker 4: the clerk. I processed all the papers and passed out
19:28
Speaker 4: people's graded papers, you know, stuck it under their doors,
19:32
Speaker 4: handed it to him. Whatever. I got to be in
19:34
Speaker 4: the classes, I got to set up the power points
19:37
Speaker 4: for them. It's like I was the Plus program.
19:40
Speaker 1: But meanwhile, all this time you're working on appealing your conviction.
19:42
Speaker 1: Your first appeal was denied and the conviction was upheld.
19:45
Speaker 1: And then in two thousand and four, still working on
19:47
Speaker 1: your own, I might you file a post conviction petition
19:50
Speaker 1: for a new trial based on your claim of ineffective
19:52
Speaker 1: assistance of counsel. That that got shot down too, right?
19:55
Speaker 4: Oh yeah, you never get any kind of traction when
19:59
Speaker 4: you when you do it yourself basically. And then public
20:03
Speaker 4: defenders they just filed the paper and it got shot down.
20:07
Speaker 4: I mean, it's like a skeet shoot.
20:08
Speaker 1: But then I believe your family had gotten the money
20:11
Speaker 1: together to hire an attorney, And in two thousand and seven,
20:14
Speaker 1: that's when you came onto the case, Cynthia. Right, So
20:17
Speaker 1: when you first went and met with Brian at the prisoner,
20:19
Speaker 1: heard his story, what was your initial impression. Did you
20:22
Speaker 1: think he had a chance.
20:24
Speaker 3: It seemed like it was going to be a tough
20:25
Speaker 3: case to beat, just because of the nature of the allegations.
20:29
Speaker 3: But Brian seemed sincere and his family was firmly in
20:33
Speaker 3: his corner and they strongly believed in his innocence. I
20:37
Speaker 3: think by then he and Judy were divorced and she
20:40
Speaker 3: still believed in his innocence. Spend my experience in representing
20:44
Speaker 3: criminal defendants that when the exes will stand behind you,
20:48
Speaker 3: it's usually a pretty strong indication of character because generally
20:52
Speaker 3: the ex wives and the ex girlfriends are the ones
20:54
Speaker 3: who know where all the dirty laundry is. And if
20:56
Speaker 3: they're still believing in this person, then that gives me
20:59
Speaker 3: a pretty good feeling that this is this is somebody
21:01
Speaker 3: I can I can help.
21:02
Speaker 1: And as I understand it, there was a very important
21:05
Speaker 1: person in your life who has since unfortunately passed away,
21:08
Speaker 1: but who really helped you a lot with this case.
21:12
Speaker 3: My mentor professor, Henry Carlson, who was my criminal law
21:16
Speaker 3: and criminal procedure professor in law school. He read the transcripts.
21:20
Speaker 3: He said, your client is innocent. I can tell by
21:22
Speaker 3: reading the transcripts. The attorney did a terrible job. We
21:26
Speaker 3: need an expert witness, and I think you should contact
21:29
Speaker 3: Richard Lawler.
21:30
Speaker 1: And Richard Lawla was an attorney and also a trained
21:32
Speaker 1: psychologist who did agree to be your expert witness.
21:35
Speaker 3: So myself, Professor Carlson, and doctor Lawler made a determination
21:41
Speaker 3: that what was going to be important was to obtain
21:44
Speaker 3: the play therapy records. So I sent my subpoenas and
21:49
Speaker 3: nothing turned up from these subpoenas. They told me that
21:54
Speaker 3: we moved and these play therapy records got less in
21:57
Speaker 3: the move. Sorry, So I did the best I could
22:01
Speaker 3: with what I had and we got the case worked
22:04
Speaker 3: up and ready to go to trial.
22:05
Speaker 1: But you did end up getting those records eventually, and
22:08
Speaker 1: how you got them is really like a comedy of errors,
22:11
Speaker 1: all starting with a snowstorm.
22:13
Speaker 3: So the evidential you're hearing took place on December tenth,
22:16
Speaker 3: twenty ten, which I believe was a Friday, very snowy
22:20
Speaker 3: day in South Bend, Indiana. We went up the night
22:22
Speaker 3: before so we could serve the subpoena. Again, I sent
22:28
Speaker 3: my clerk. He goes to their office and again they say,
22:32
Speaker 3: we don't have these notes. We already told you we
22:35
Speaker 3: don't have them. So he's going to leave and come
22:38
Speaker 3: back to the courthouse and he's reaching in his pockets
22:42
Speaker 3: and he realizes he can't find the car keys, and
22:45
Speaker 3: he thinks that he's locked the car keys in the car.
22:49
Speaker 3: He also can't seem to find his cell phone, so
22:51
Speaker 3: he flags down a snowplow, and the snowplow flags down
22:56
Speaker 3: a police officer. So they're out there trying to slim
22:59
Speaker 3: Jim the car to get into the car. And I
23:02
Speaker 3: think what happened is the people inside the plate therapy
23:05
Speaker 3: place looked out the one who and saw the police
23:07
Speaker 3: and thought that we were serving process on our subpoena.
23:10
Speaker 3: The young man that I had hired went back inside
23:13
Speaker 3: to see if you could use their phone, and lo
23:15
Speaker 3: and behold, they coughed up a stack of notes.
23:30
Speaker 1: It's the day of your evidentiary hearing, and everything's on
23:33
Speaker 1: the line. Now you're going up in front of Judge
23:35
Speaker 1: Jerome Freeze and your expert witness, Doctor Richard Lawler, had
23:40
Speaker 1: just an hour or so to go over those plate
23:42
Speaker 1: therapy records right before he got up to testify.
23:45
Speaker 3: And essentially what doctor Lawler's testimony was able to illuminate
23:50
Speaker 3: is the concept of confabulation. The notes basically were the
23:54
Speaker 3: evidence that showed that the child was groomed to testify
23:58
Speaker 3: against Brian. There was definitely some leading questions. The therapist
24:03
Speaker 3: would refer to Brian as Brian rather than the dad,
24:08
Speaker 3: and at the beginning of the testimony, when the prosecutor asked, Michael,
24:12
Speaker 3: do you have a dad that I did but now
24:14
Speaker 3: I don't, the therapist introduced the topic of secrets, the
24:19
Speaker 3: idea of giving the child a power badge to where
24:23
Speaker 3: to help tell the truth. They also gave him a
24:25
Speaker 3: policeman ring to give him power.
24:28
Speaker 4: There was at one point there was something about his
24:30
Speaker 4: mom was threatening to take his cat away if he
24:33
Speaker 4: didn't say what they wanted him to say. One of
24:36
Speaker 4: the handwritten notes said that Michael Scott is finally saying
24:40
Speaker 4: what we want him to say.
24:42
Speaker 3: And because no one obtained the notes bright to trial,
24:45
Speaker 3: there was no cross there was no testimony whatsoever about this.
24:48
Speaker 3: I don't even know if the prosecution saw these notes.
24:51
Speaker 1: And while the therapists did get him to say what they
24:53
Speaker 1: wanted through this conditioning and what sounds like punitive measures,
24:58
Speaker 1: Michael Scott also ode said some things that didn't really
25:02
Speaker 1: track with the allegations. In fact, they didn't even make
25:05
Speaker 1: any sense.
25:07
Speaker 3: One of the things that the little boy said is
25:10
Speaker 3: that when he supposedly had this encounter with the oral sex,
25:14
Speaker 3: that it tasted like green jello. Obviously not true. Another
25:20
Speaker 3: thing that we noticed was that when he drew a picture,
25:24
Speaker 3: which was supposedly a picture of that father's penis, the
25:27
Speaker 3: hair was on the shaft. Obviously untrue. But these are
25:31
Speaker 3: things that happen when there is a confabulation. When this
25:33
Speaker 3: story is planted in a child's mind, eventually the child
25:36
Speaker 3: comes to believe that it's real, especially with a very
25:39
Speaker 3: young child, and they fill in details to supplement what
25:44
Speaker 3: they believe to be true. But the details are wrong.
25:47
Speaker 1: So you've brought in this expert witness and all this
25:50
Speaker 1: powerful new evidence, along with the deposition from your mentor
25:52
Speaker 1: Henry Carlson, all of which forms are very powerful argument
25:56
Speaker 1: for not only in effective assistance of counsel, but also
25:58
Speaker 1: witness tampering and manipulation. And on top of that, you
26:01
Speaker 1: had one more witness who was going to be absolutely
26:03
Speaker 1: crucial to the case.
26:05
Speaker 3: The initial therapist that did the play therapy was Kathy Steinman.
26:10
Speaker 3: And the one other thing that was made clear to
26:13
Speaker 3: us whenever we did obtain the notes is that somebody
26:16
Speaker 3: else had signed her name and put their initials after it,
26:20
Speaker 3: and she had moved to Michigan. She did not want
26:23
Speaker 3: to drive to South Bend to do the trial. She
26:26
Speaker 3: ended up testifying by telephone on December tenth, twenty ten,
26:31
Speaker 3: which was.
26:32
Speaker 1: The day you concluded your case, but Judge Freeze didn't
26:35
Speaker 1: give you a ruling that day. He told you to
26:37
Speaker 1: come back a month later to make your closing arguments,
26:39
Speaker 1: and then, to your shock and devastation, Judge Freeze denied
26:44
Speaker 1: the post conviction relief. But I mean, he's here with
26:48
Speaker 1: us today, right now, right, So then what happened.
26:50
Speaker 3: Brian and I were actually going to appeal the decision
26:54
Speaker 3: and had actually, I think even gone so far as
26:56
Speaker 3: the file the notice of appeal, but then the judge
27:00
Speaker 3: judge had second thoughts and had his staff call me
27:02
Speaker 3: and ask if I wanted to reopen the evidence because
27:06
Speaker 3: he said he didn't think it was quite fair that
27:08
Speaker 3: we had been given the notes in the middle of
27:11
Speaker 3: the trial, and also it was difficult to hear the
27:14
Speaker 3: witness on the phone and it would be better if
27:16
Speaker 3: she could come in person. So we did that in February.
27:22
Speaker 3: Then the judge took it under advisement. Judge Freeze wrote
27:26
Speaker 3: his own findings, and he did that in May.
27:29
Speaker 1: And that was in May of twenty eleven, just a
27:31
Speaker 1: few months after denying your PCR request. Judge Freeze then
27:34
Speaker 1: issued his final ruling, granting post conviction relief and basically
27:37
Speaker 1: overturning your conviction. That must have been an unbelievable day
27:42
Speaker 1: for you, Brian.
27:43
Speaker 4: Well, it ain't like, okay, it's overturned and we opened
27:46
Speaker 4: the doors and let you out. It's don't work that way.
27:50
Speaker 4: I think I was in there for it was either
27:52
Speaker 4: three weeks or a month deemed an innocent man. Now
27:56
Speaker 4: you don't tell nobody that when you're in prison, because
27:59
Speaker 4: they'll do what's called jack your time. They'll cause problems
28:02
Speaker 4: with you so that you get in trouble and you
28:05
Speaker 4: don't get to leave on time. So here I am
28:08
Speaker 4: busting at the seams, and only my closest friends in
28:11
Speaker 4: prison that I allow to know I'm getting out until
28:15
Speaker 4: the morning that they packed me out, and I'm walking
28:19
Speaker 4: out and shaking hands with guys. Tell him it's nice
28:23
Speaker 4: to meet you. I got my case overturned. I'm going home.
28:26
Speaker 4: So I get up there and finally get to go
28:29
Speaker 4: before the judge and he releases me, and one of
28:32
Speaker 4: the happiest days of my life. When you walk out
28:35
Speaker 4: of that prison, your depths. You don't realize how far
28:40
Speaker 4: you can see. And when you walk out a free man,
28:45
Speaker 4: everything you're able to not ask the guard if I can,
28:51
Speaker 4: can I hug my mom.
28:54
Speaker 1: And now she's standing right there waiting for you, along
28:57
Speaker 1: with her posse.
28:59
Speaker 4: My mom grew up best friends with five other women.
29:02
Speaker 4: There were six of them that were all good friends.
29:05
Speaker 4: They were all there. They had a motel room and
29:09
Speaker 4: the banquet room set up so we could have a
29:12
Speaker 4: coming out party. It was great.
29:15
Speaker 1: You eventually filed a federal civil rights suit against Saint
29:17
Speaker 1: Joseph County. But the truth is there's nothing. There's no
29:20
Speaker 1: amount that could ever repay you for what you went through.
29:23
Speaker 4: No put a price on your life for a year.
29:26
Speaker 4: You can't. There's no price. I mean, what are you
29:29
Speaker 4: going to do go back and say, well, his wages
29:32
Speaker 4: for the year was this, So that's the value of
29:34
Speaker 4: his life and where I was your life in danger
29:39
Speaker 4: every day, So how do you put a price on that?
29:44
Speaker 1: Our listeners, is there anything that they can do? To
29:47
Speaker 1: help or anything that you need.
29:49
Speaker 4: Well, the biggest thing that I could ask for is
29:52
Speaker 4: just prayer. You know people want to say money, money, money, Well,
29:57
Speaker 4: somebody could lay one hundred dollars a bill in your hand.
30:00
Speaker 4: You know that's worth one hundred dollars, But you can't
30:03
Speaker 4: even put a price on a prayer and prayers what
30:06
Speaker 4: got me through. There are so many people praying for me,
30:09
Speaker 4: and nobody let God forget about Brian.
30:14
Speaker 1: So what are you doing now? Have you been able
30:17
Speaker 1: to pick up some of the pieces.
30:19
Speaker 4: I went back to being a decent mechanic. I just
30:22
Speaker 4: try to enjoy every day. You learn to appreciate walking
30:27
Speaker 4: outside and smelling the air. I even like flowers nowadays.
30:33
Speaker 4: I never never thought anything about colorful flowers, but you
30:39
Speaker 4: sure do appreciate them now.
30:41
Speaker 1: And now we're going to turn to my favorite part
30:43
Speaker 1: of the show, which we call closing arguments. I'm just
30:46
Speaker 1: gonna turn off my mic, kick back in my chair
30:49
Speaker 1: and listen as you guys say whatever else you feel
30:54
Speaker 1: is left to be said. The floor is yours, So
30:58
Speaker 1: thank you again for being here. Dear, why don't you
31:00
Speaker 1: start us off and then Brian you take us out?
31:05
Speaker 3: What I would say, more so than anything, is just
31:07
Speaker 3: how valuable the Constitution is in protecting people's freedoms. And
31:14
Speaker 3: if a person's constitutional rights have been violated and they
31:17
Speaker 3: don't get a fair trial trial, judges should not be
31:21
Speaker 3: afraid to overturned convictions, Prosecutors should not be afraid to
31:27
Speaker 3: revisit wrongful convictions because freedom is too precious and too
31:32
Speaker 3: valuable for someone to have to sit in prison for
31:35
Speaker 3: something that they didn't do. And in negotiating with prosecutors
31:39
Speaker 3: and pleading cases to judges, you know, sometimes the best
31:42
Speaker 3: thing that you can do is ask for mercy and grace.
31:45
Speaker 3: And even for people that are in prison for something
31:48
Speaker 3: they actually did, sometimes the senses are too long. But
31:52
Speaker 3: for people to be in prison for something that they
31:54
Speaker 3: didn't do, that's just evil. Brian is a good example
31:59
Speaker 3: of this. And I just hope that you know, for
32:04
Speaker 3: people out there that are doing this kind of work,
32:06
Speaker 3: that they don't lose heart, and that judges who are
32:09
Speaker 3: presented with cases like this will have the courage to
32:12
Speaker 3: do the right thing.
32:14
Speaker 2: As strange as it sounds, I feel like I'm pretty blessed.
32:18
Speaker 2: The Lord showed me a lot and had me do
32:20
Speaker 2: a lot of what I think is good being there
32:24
Speaker 2: in prison with the Plus program. It sounds crazy, but
32:29
Speaker 2: I feel like I'm a blessed man.
32:33
Speaker 4: I'm definitely blessed. I finally prove of my innocence, but
32:38
Speaker 4: I'll never know what it's like to have a son,
32:43
Speaker 4: So I hate it that he lives a life lies,
32:46
Speaker 4: but I pray for him every day. The guy puts
32:49
Speaker 4: angels in his life to lead him and protecting, and
32:53
Speaker 4: the justice system ain't a justice system. It's about as
32:57
Speaker 4: fucked up as it comes.
33:04
Speaker 1: Thank you for listening to Wrongful Conviction Special thanks to
33:07
Speaker 1: our amazing production team Connor hall, Any, Chelsea, Jeff Clyburn,
33:12
Speaker 1: and Kevin Wartis, with research by Lyla Robinson. The music
33:15
Speaker 1: in this production was supplied by three time OSCAR nominated
33:18
Speaker 1: composer Jay Ralph. Make sure to follow us on Instagram
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Speaker 1: at Wrongful Conviction, on Facebook at Wrongful Conviction Podcast, and
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Speaker 1: on Twitter at wrong Conviction, as well as at Lava
33:29
Speaker 1: for Good. On all three platforms, you can also follow
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Speaker 1: Jason Flamm. Wrongful Conviction is a production of Lava for
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Speaker 1: Good Podcasts. And association with signal Company number one