1 00:00:00,160 --> 00:00:03,400 Speaker 1: Hey, it's Jason, just letting you know that Wrongful Conviction 2 00:00:03,560 --> 00:00:06,320 Speaker 1: is going to take a short hiatus. Wrongful Conviction with 3 00:00:06,400 --> 00:00:10,200 Speaker 1: Maggie Freeling will continue to drop every Monday, but after today. 4 00:00:10,280 --> 00:00:13,040 Speaker 1: The next new episode of Wrongful Conviction with Yours Truly 5 00:00:13,080 --> 00:00:17,360 Speaker 1: will drop on Thursday, April thirteenth. However, if you want 6 00:00:17,360 --> 00:00:19,960 Speaker 1: to begin hearing new episodes one week early, you can 7 00:00:20,000 --> 00:00:24,000 Speaker 1: subscribe to our feed through Apple Plus. All subscribers will 8 00:00:24,000 --> 00:00:27,360 Speaker 1: hear new episodes of all of our podcasts add free, 9 00:00:27,840 --> 00:00:31,080 Speaker 1: one week before everybody else. So get in the know 10 00:00:31,640 --> 00:00:37,640 Speaker 1: one week early with an Apple Plus subscription. Brian Derek 11 00:00:37,720 --> 00:00:41,200 Speaker 1: and Roberta Smedley met in Plymouth, Indiana in nineteen ninety four, 12 00:00:41,240 --> 00:00:45,199 Speaker 1: and before long they were inseparable. Two years later, they 13 00:00:45,240 --> 00:00:48,280 Speaker 1: had a son, Michael Scott. By the time the boy 14 00:00:48,360 --> 00:00:51,320 Speaker 1: was almost three years old, the relationship at con sour. 15 00:00:51,800 --> 00:00:54,760 Speaker 1: Roberta kicked Brian out of the house, got a restraining order, 16 00:00:55,040 --> 00:00:58,760 Speaker 1: and cleaned out his bank account. Eventually, a bitter custody 17 00:00:58,800 --> 00:01:02,760 Speaker 1: battle ensued. In June of two thousand, after the boy 18 00:01:02,800 --> 00:01:05,760 Speaker 1: had returned from a visit with Brian, Roberta reported to 19 00:01:05,800 --> 00:01:08,120 Speaker 1: police that Michael Scott had told her that he had 20 00:01:08,160 --> 00:01:11,720 Speaker 1: been molested by his father. The Department of Child Services 21 00:01:11,760 --> 00:01:16,600 Speaker 1: investigated the allegations. Brian's visitation rights were suspended and Michael 22 00:01:16,600 --> 00:01:20,600 Speaker 1: Scott was sent to play therapy. Three years later, at trial, 23 00:01:20,959 --> 00:01:25,640 Speaker 1: Roberta and the therapist repeated the accusations against Brian. Michael Scott, 24 00:01:25,720 --> 00:01:28,559 Speaker 1: now six years old, testified to say that his father 25 00:01:28,680 --> 00:01:32,640 Speaker 1: had in fact done what his mother had alleged. Brian's 26 00:01:32,640 --> 00:01:34,800 Speaker 1: only defense was to say that he loved his son 27 00:01:34,840 --> 00:01:37,960 Speaker 1: and would never hurt him against the testimony of an 28 00:01:37,959 --> 00:01:43,160 Speaker 1: impressionable child. Three years worth of notes and videotape therapy 29 00:01:43,240 --> 00:01:47,680 Speaker 1: sessions probably helped nothing of interest to the jury. But 30 00:01:47,800 --> 00:02:03,480 Speaker 1: this is wrongful conviction. Welcome back to ronful conviction. Today's 31 00:02:03,520 --> 00:02:06,280 Speaker 1: story comes to us from Saint Joseph's County, Indiana, and 32 00:02:06,320 --> 00:02:09,520 Speaker 1: it's about one of the most horrific things that anyone 33 00:02:09,520 --> 00:02:12,840 Speaker 1: can imagine as a parent. And I'm speaking as a parent, 34 00:02:12,919 --> 00:02:17,600 Speaker 1: but this would be horrific to any normal human person. 35 00:02:18,480 --> 00:02:22,360 Speaker 1: I'm talking about the crime of child molestation. And the 36 00:02:22,480 --> 00:02:26,560 Speaker 1: thing is it never happened. It was a story cooked 37 00:02:26,639 --> 00:02:29,680 Speaker 1: up as ammunition for a custody battle, and unfortunately, an 38 00:02:29,680 --> 00:02:33,000 Speaker 1: innocent child was used to bolster the charge by being 39 00:02:33,040 --> 00:02:36,040 Speaker 1: groomed to testify against his own father. That's the real 40 00:02:36,120 --> 00:02:40,359 Speaker 1: child abuse. By the way, our guest today is Brian Erik. Brian, 41 00:02:40,560 --> 00:02:41,720 Speaker 1: welcome to WRON for conviction. 42 00:02:41,919 --> 00:02:42,240 Speaker 2: Thank you. 43 00:02:42,639 --> 00:02:46,120 Speaker 1: And also with us is Cynthia Carter, Indiana criminal defense 44 00:02:46,160 --> 00:02:49,720 Speaker 1: attorney and self described recovering public defender who was Brian's 45 00:02:49,760 --> 00:02:52,840 Speaker 1: post conviction attorney. So Cynthia welcome, Thank you. 46 00:02:52,960 --> 00:02:54,440 Speaker 3: Jason. Really great to be here. 47 00:02:55,040 --> 00:02:57,799 Speaker 1: Brian. Let's start with you. Where did you grow up? 48 00:02:58,080 --> 00:03:01,359 Speaker 4: Right outside of South ben Indiana, little town called Walkerton. 49 00:03:01,480 --> 00:03:04,520 Speaker 4: It was just a small town. My family could have 50 00:03:04,560 --> 00:03:11,200 Speaker 4: been considered lower middle class, good family structure, mom, dad, brother. 51 00:03:11,200 --> 00:03:14,400 Speaker 1: And then around nineteen eighty four you started seeing Roberta Smedley. 52 00:03:14,560 --> 00:03:15,919 Speaker 1: Where did you two meet. 53 00:03:16,000 --> 00:03:20,919 Speaker 4: At the Blueberry Festival in Plymouth, Indiana. We were together 54 00:03:21,280 --> 00:03:24,000 Speaker 4: I think six years overall for the most part, it 55 00:03:24,080 --> 00:03:24,840 Speaker 4: was always good. 56 00:03:25,000 --> 00:03:27,240 Speaker 1: And a couple of years later you found out that 57 00:03:27,320 --> 00:03:30,120 Speaker 1: Roberta was pregnant. Were you excited about becoming a father? 58 00:03:30,600 --> 00:03:33,000 Speaker 4: Yeah, it was great. I was looking forward to being 59 00:03:33,040 --> 00:03:36,240 Speaker 4: a dad. You know, it's every boy's dream. I assume 60 00:03:36,320 --> 00:03:39,600 Speaker 4: every boy's dream. It was mine through the pregnancy. I 61 00:03:39,640 --> 00:03:43,960 Speaker 4: went to every one of the doctor meetings, birthing class, 62 00:03:44,000 --> 00:03:46,400 Speaker 4: and I was there when he was born. It was 63 00:03:46,680 --> 00:03:49,200 Speaker 4: the greatest thing ever in my life. 64 00:03:49,640 --> 00:03:52,800 Speaker 1: So now you, Roberta, and your son Michael Scott are 65 00:03:52,800 --> 00:03:55,360 Speaker 1: a family, and for all intents and purposes, it sounds 66 00:03:55,360 --> 00:03:57,640 Speaker 1: like life was going pretty well for a while, right. 67 00:03:57,760 --> 00:03:59,560 Speaker 1: I mean, you had a steady job and we're building 68 00:03:59,600 --> 00:04:00,480 Speaker 1: a life together. 69 00:04:01,000 --> 00:04:04,080 Speaker 4: I was working in a machine shop as a machinist 70 00:04:04,160 --> 00:04:08,040 Speaker 4: assembler and going to work every day, ten twelve hour 71 00:04:08,200 --> 00:04:12,320 Speaker 4: days and coming home every night to my family. Michael 72 00:04:12,320 --> 00:04:14,720 Speaker 4: Scott and I had a great relationship. I mean I 73 00:04:14,760 --> 00:04:17,760 Speaker 4: was always involved in his life. He was the center 74 00:04:17,800 --> 00:04:20,480 Speaker 4: of my life. And one day I come home from 75 00:04:20,520 --> 00:04:24,640 Speaker 4: work and she tells me you've got to get out. 76 00:04:24,920 --> 00:04:26,279 Speaker 4: And I said, what do you mean I got to 77 00:04:26,279 --> 00:04:28,800 Speaker 4: get out? She says, well, I got a restraining order 78 00:04:28,839 --> 00:04:30,640 Speaker 4: against you and you've got to move out. 79 00:04:30,920 --> 00:04:33,440 Speaker 1: This just came out of the blue, without any warning 80 00:04:33,480 --> 00:04:36,760 Speaker 1: at all. Do you have any idea what that was 81 00:04:36,800 --> 00:04:37,359 Speaker 1: all about. 82 00:04:37,920 --> 00:04:41,840 Speaker 4: She just always got whatever she wanted, and you know, 83 00:04:41,920 --> 00:04:45,280 Speaker 4: she wanted a child and she got it and then 84 00:04:45,400 --> 00:04:47,720 Speaker 4: got rid of me. So I ended up going out 85 00:04:47,760 --> 00:04:51,520 Speaker 4: to my dad's and staying with him until I finally 86 00:04:52,040 --> 00:04:55,560 Speaker 4: got an apartment and one of my ex girlfriend came 87 00:04:55,640 --> 00:04:57,920 Speaker 4: back into my life and his life, and she just 88 00:04:57,960 --> 00:04:59,200 Speaker 4: adored Michael Scott. 89 00:04:59,320 --> 00:05:01,960 Speaker 1: Yeah, your girlfri So Michael Scott was around three years 90 00:05:01,960 --> 00:05:04,360 Speaker 1: old at this point and living with his mother full time. 91 00:05:04,400 --> 00:05:06,880 Speaker 1: But you and Roberta had worked out some kind of 92 00:05:06,960 --> 00:05:08,240 Speaker 1: visitation agreement, right. 93 00:05:08,680 --> 00:05:12,279 Speaker 4: I was there every Wednesday and every other weekend. I 94 00:05:12,360 --> 00:05:16,040 Speaker 4: had him and we did everything we could together. We'd 95 00:05:16,520 --> 00:05:18,600 Speaker 4: fill the car up with balloons. I had a four 96 00:05:18,640 --> 00:05:22,040 Speaker 4: door of Crown Victoria and we'd go down the road 97 00:05:22,120 --> 00:05:24,320 Speaker 4: and roll the windows down and the balloons would fly 98 00:05:24,440 --> 00:05:28,599 Speaker 4: around and fly out. It was wonderful. Michael Scott loved 99 00:05:28,600 --> 00:05:31,840 Speaker 4: being with me. I bought a house Judy and I 100 00:05:31,880 --> 00:05:35,400 Speaker 4: moved into it. It was a nice two story house. 101 00:05:36,279 --> 00:05:38,760 Speaker 4: Michael Scott would come over. He had his own bedroom. 102 00:05:39,360 --> 00:05:42,320 Speaker 4: He had a walk in closet that we were sitting 103 00:05:42,360 --> 00:05:46,360 Speaker 4: there with markers and right all over the walls, throw 104 00:05:46,400 --> 00:05:49,920 Speaker 4: the ball up and down the steps, and like I said, 105 00:05:49,920 --> 00:05:52,000 Speaker 4: I thought we had it going on. It was more 106 00:05:52,040 --> 00:05:55,800 Speaker 4: stable than his house. You know. He would always say, 107 00:05:55,960 --> 00:05:58,760 Speaker 4: Mom's going out drinking or Mom was drunk. 108 00:05:58,960 --> 00:06:01,120 Speaker 1: So around this time is when you decide to hire 109 00:06:01,120 --> 00:06:03,880 Speaker 1: a lawyer, Greg Blandford and push for full custody of 110 00:06:03,920 --> 00:06:04,320 Speaker 1: your son. 111 00:06:04,760 --> 00:06:07,880 Speaker 4: I wanted to have him with me, and I thought 112 00:06:07,920 --> 00:06:10,520 Speaker 4: it was better for him to be with Judy and I, 113 00:06:11,400 --> 00:06:16,760 Speaker 4: you know, I felt it was more safe. At one point, 114 00:06:16,839 --> 00:06:20,400 Speaker 4: Roberta had sent my mom a picture of Michael Scott 115 00:06:20,839 --> 00:06:22,839 Speaker 4: and it was a picture of Michael Scott and his 116 00:06:22,920 --> 00:06:27,240 Speaker 4: little buddy Max, and they were both drinking a beer. 117 00:06:28,360 --> 00:06:30,680 Speaker 4: So I presented that to the court. I think that's 118 00:06:30,720 --> 00:06:35,200 Speaker 4: what flipped her switch to make up all these lies. 119 00:06:35,080 --> 00:06:37,159 Speaker 1: In June two thousand, that's when you find out just 120 00:06:37,200 --> 00:06:39,520 Speaker 1: what kind of lies should be willing to make up. 121 00:06:40,120 --> 00:06:43,159 Speaker 4: Then I come home from work one day and Judy 122 00:06:43,240 --> 00:06:45,479 Speaker 4: meets me at the door and she says, get in 123 00:06:45,520 --> 00:06:48,680 Speaker 4: the house. She says, there's a warrant for your arrest, 124 00:06:48,920 --> 00:06:52,640 Speaker 4: And I said for what She says, They said that 125 00:06:52,680 --> 00:06:55,360 Speaker 4: you did something to Michael Scott. Right. 126 00:06:55,440 --> 00:07:00,359 Speaker 3: The police report was June second, two thousand, and the 127 00:07:00,440 --> 00:07:05,520 Speaker 3: police talked to Roberta and she reported that the child 128 00:07:05,839 --> 00:07:09,800 Speaker 3: had reported that Brian was doing things to him and 129 00:07:09,840 --> 00:07:11,400 Speaker 3: that he didn't like his father's peepee. 130 00:07:11,920 --> 00:07:15,000 Speaker 4: And so I called my family attorney, the one that 131 00:07:15,360 --> 00:07:19,080 Speaker 4: was working with me to get custody, and he says, 132 00:07:19,560 --> 00:07:22,800 Speaker 4: they're alligating that you did something to Michael Scott sexually. 133 00:07:23,120 --> 00:07:27,480 Speaker 4: And I said, that's impossible, Greg, it didn't happen. He said, well, 134 00:07:27,520 --> 00:07:28,520 Speaker 4: this is what's happening. 135 00:07:28,680 --> 00:07:32,760 Speaker 1: These are really serious allegations, of course, but initially there 136 00:07:32,840 --> 00:07:36,240 Speaker 1: was a wide gap between what Roberta alleged that Michael 137 00:07:36,320 --> 00:07:39,680 Speaker 1: Scott had said and what Michael Scott was actually saying. 138 00:07:39,880 --> 00:07:43,720 Speaker 4: So then I find out that what he's saying is Doggie, 139 00:07:43,800 --> 00:07:47,640 Speaker 4: Dad and grass. That's all he was saying. I mean, 140 00:07:47,680 --> 00:07:51,360 Speaker 4: it was nothing. Everybody's just kind of laughing about this 141 00:07:51,560 --> 00:07:55,320 Speaker 4: because they know Brian. They know this isn't possible. This 142 00:07:55,480 --> 00:07:57,160 Speaker 4: was all craziness. 143 00:07:57,280 --> 00:07:59,960 Speaker 1: When these kinds of allegations are leveled, Apartment of Children 144 00:08:00,080 --> 00:08:04,040 Speaker 1: Services or DCS must get involved by law. And there 145 00:08:04,120 --> 00:08:06,200 Speaker 1: was a physical examination done too. 146 00:08:06,280 --> 00:08:10,880 Speaker 3: And they didn't notice any injury to the child, just 147 00:08:11,440 --> 00:08:15,320 Speaker 3: some redness and there was no internal examination done, but 148 00:08:15,400 --> 00:08:17,480 Speaker 3: there were no injuries to Brian's son. 149 00:08:17,640 --> 00:08:20,560 Speaker 1: Michael Scott was interviewed by a therapist at a child 150 00:08:20,640 --> 00:08:23,360 Speaker 1: abuse investigation center called the Casey Center. 151 00:08:23,560 --> 00:08:28,520 Speaker 3: They interviewed Michael Scott and he says, my dad don't 152 00:08:28,560 --> 00:08:30,880 Speaker 3: do nothing to me. I mean, this was on video 153 00:08:31,200 --> 00:08:33,320 Speaker 3: and they're trying to get him to say something is 154 00:08:33,360 --> 00:08:34,560 Speaker 3: not saying anything. 155 00:08:34,960 --> 00:08:39,640 Speaker 1: So these sessions were videotaped, but Brian's attorney never even 156 00:08:39,760 --> 00:08:43,000 Speaker 1: reviewed them or presented to the court during his trial. 157 00:08:43,040 --> 00:08:45,720 Speaker 1: But this is what we know now, So it sounds 158 00:08:45,760 --> 00:08:48,480 Speaker 1: like the allegations were not being made by the alleged victim, 159 00:08:48,480 --> 00:08:53,160 Speaker 1: Michael Scott, but rather just coming from the mind of Roberta. Nevertheless, 160 00:08:53,200 --> 00:08:55,720 Speaker 1: Brian's visitation rights were suspended and he wasn't allowed to 161 00:08:55,720 --> 00:08:58,720 Speaker 1: see his son. Then in October two thousand, they stopped 162 00:08:58,720 --> 00:09:01,280 Speaker 1: the investigation because thing had really come out of it, 163 00:09:01,320 --> 00:09:03,920 Speaker 1: But it sounds like Roberta was still not anywhere near 164 00:09:04,200 --> 00:09:05,480 Speaker 1: letting up with her story. 165 00:09:05,720 --> 00:09:12,120 Speaker 3: It's interesting because the allegations actually evolved over time. When 166 00:09:12,480 --> 00:09:15,560 Speaker 3: the mother first spoke to the police, she said she 167 00:09:15,760 --> 00:09:18,680 Speaker 3: was wiping the child after he went to the bathroom 168 00:09:18,920 --> 00:09:21,800 Speaker 3: and the child supposedly said, don't put your finger there, 169 00:09:21,880 --> 00:09:25,480 Speaker 3: that hurts. And then the things that Brian mentioned about 170 00:09:25,640 --> 00:09:30,480 Speaker 3: Daddy dog grass, So that's what led to the initial 171 00:09:31,280 --> 00:09:37,120 Speaker 3: physical examination. Well, then come November of two thousand, the 172 00:09:37,200 --> 00:09:41,720 Speaker 3: allegation changed. Then the allegation was that he put his 173 00:09:41,760 --> 00:09:44,760 Speaker 3: peep in my mouth, So that was a totally different 174 00:09:44,800 --> 00:09:46,960 Speaker 3: allegation than what was made in the first place. 175 00:09:47,360 --> 00:09:50,679 Speaker 4: That went on for over a year, just those allegations, 176 00:09:51,280 --> 00:09:55,120 Speaker 4: and then the other warrant came up that says, oh, 177 00:09:55,240 --> 00:09:58,120 Speaker 4: we have enough. They want to grand jury, we have 178 00:09:58,320 --> 00:09:59,920 Speaker 4: enough to try him criminal. 179 00:10:00,480 --> 00:10:02,959 Speaker 1: During that year, unbeknownst to you, Michael Scott was being 180 00:10:03,000 --> 00:10:05,640 Speaker 1: sent to this place called Holy Cross Counseling Center for 181 00:10:05,679 --> 00:10:09,360 Speaker 1: play therapy once a week, where they were basically feeding 182 00:10:09,440 --> 00:10:12,800 Speaker 1: him the story that ROBERTA made up that his daddy 183 00:10:12,840 --> 00:10:16,920 Speaker 1: had been touching him and doing things to him. Basically, 184 00:10:17,840 --> 00:10:22,320 Speaker 1: let's call it what it was, brainwashing and indoctrinating this 185 00:10:22,480 --> 00:10:27,240 Speaker 1: poor little child with all of these horrible lies about 186 00:10:27,280 --> 00:10:28,760 Speaker 1: anal and oral sex. 187 00:10:29,120 --> 00:10:32,520 Speaker 3: There absolutely wasn't doctor nation that was going on. And 188 00:10:33,040 --> 00:10:36,080 Speaker 3: the whole time that this play therapy, it wasn't just 189 00:10:36,360 --> 00:10:40,240 Speaker 3: therapy therapy, it was play therapy. Brian was not allowed 190 00:10:40,240 --> 00:10:43,400 Speaker 3: to see his son. The child was being groomed to 191 00:10:43,480 --> 00:10:49,640 Speaker 3: testify against Brian. There was definitely some leading questions and 192 00:10:50,080 --> 00:10:53,040 Speaker 3: they even went so far as to give him a 193 00:10:53,240 --> 00:10:57,120 Speaker 3: power badge and a policeman ring, and it was suggested 194 00:10:57,200 --> 00:10:59,960 Speaker 3: that this was going to help him tell the truth. 195 00:11:00,120 --> 00:11:02,760 Speaker 3: According to the notes anyway, from the therapy, they even 196 00:11:02,840 --> 00:11:06,559 Speaker 3: gave him bad guy spray to put on the windows. 197 00:11:07,280 --> 00:11:09,200 Speaker 3: I think by the time the trial came around, he 198 00:11:09,280 --> 00:11:12,320 Speaker 3: wasn't even calling his father dad anymore. He called him Brian. 199 00:11:13,360 --> 00:11:16,800 Speaker 3: And the expert witnesses that we used said that that 200 00:11:16,920 --> 00:11:19,680 Speaker 3: was evidence of demonization of the person. 201 00:11:19,960 --> 00:11:22,440 Speaker 1: But none of these notes from the quote unquote play 202 00:11:22,520 --> 00:11:25,160 Speaker 1: therapy and those videotapes that we mentioned earlier, none of 203 00:11:25,200 --> 00:11:28,440 Speaker 1: that ever was brought up in the trial. The judge 204 00:11:28,440 --> 00:11:31,360 Speaker 1: didn't know about them, the jury never heard about them. 205 00:11:31,880 --> 00:11:33,960 Speaker 1: Why in the world is that. 206 00:11:34,240 --> 00:11:38,000 Speaker 3: The public defender that handled Brand's case didn't obtain those notes. 207 00:11:38,440 --> 00:11:41,800 Speaker 3: He did not even put the bare minimum of effort, 208 00:11:41,840 --> 00:11:43,040 Speaker 3: no subpoena, no nothing. 209 00:11:43,440 --> 00:11:44,959 Speaker 1: And later on we'll hear the story of how you 210 00:11:45,040 --> 00:11:47,520 Speaker 1: dug up all of these records. So let's get back 211 00:11:47,559 --> 00:11:49,959 Speaker 1: to the initial proceedings. On October twenty nine, two thousand 212 00:11:49,960 --> 00:11:51,560 Speaker 1: and one, you were indicted by a grand jury on 213 00:11:51,600 --> 00:11:55,640 Speaker 1: two counts of child molestation Class A oral sorodomy, which 214 00:11:55,679 --> 00:11:57,920 Speaker 1: at the time was the highest level felony short of 215 00:11:58,000 --> 00:12:02,360 Speaker 1: murder and Class C, which is finally you were arrested, 216 00:12:02,520 --> 00:12:04,800 Speaker 1: then let out on a five thousand dollars bond, and 217 00:12:04,840 --> 00:12:07,560 Speaker 1: a public defender, Brian May was assigned to represent you 218 00:12:07,600 --> 00:12:08,080 Speaker 1: at trial. 219 00:12:08,200 --> 00:12:11,080 Speaker 4: Well, Judy and I we tried getting a hold of 220 00:12:11,160 --> 00:12:13,920 Speaker 4: Brian May to set up meetings so that I could 221 00:12:14,000 --> 00:12:16,600 Speaker 4: get with him, you know, and forty one times I 222 00:12:16,679 --> 00:12:20,680 Speaker 4: called him and never got an answer, never got a reply. 223 00:12:21,040 --> 00:12:23,920 Speaker 4: Finally I was allowed a visit with him when I 224 00:12:23,960 --> 00:12:26,680 Speaker 4: went in with all these notes, but everything that I 225 00:12:26,880 --> 00:12:30,439 Speaker 4: had on my notes, he was just blown it away. 226 00:12:30,640 --> 00:12:33,920 Speaker 4: You know, that don't matter, That doesn't matter, This doesn't matter. 227 00:12:34,280 --> 00:12:35,920 Speaker 4: As I know, that's all that he had to go 228 00:12:36,000 --> 00:12:39,200 Speaker 4: on in my case was my notes. I only met 229 00:12:39,240 --> 00:12:42,640 Speaker 4: with him, I believe, two times before the trial. 230 00:12:42,920 --> 00:12:45,040 Speaker 1: And we should also mention that your lawyer from the 231 00:12:45,040 --> 00:12:49,160 Speaker 1: Cussy dispute, Greg Blandford, had continually offered to help Brian 232 00:12:49,200 --> 00:12:53,080 Speaker 1: May with these criminal charges. He was, of course intimately 233 00:12:53,080 --> 00:12:56,720 Speaker 1: acquainted with your case and well aware of Bird's mindset, 234 00:12:57,240 --> 00:13:01,040 Speaker 1: but apparently his offer was ignored. All started in January 235 00:13:01,120 --> 00:13:03,400 Speaker 1: two thousand and three at Saint Joseph County Superior Court, 236 00:13:03,440 --> 00:13:06,680 Speaker 1: and again Brian was being tried on two felony counts 237 00:13:06,720 --> 00:13:09,240 Speaker 1: of sexual assault of his own son, who by now 238 00:13:09,280 --> 00:13:10,120 Speaker 1: is six years old. 239 00:13:10,480 --> 00:13:15,240 Speaker 3: So the state presented evidence from Linda Taylor, who was 240 00:13:15,280 --> 00:13:20,280 Speaker 3: the second play therapist. They presented evidence from the mother, 241 00:13:21,000 --> 00:13:25,320 Speaker 3: the Casey Center lady, but not the videos. The videos 242 00:13:25,320 --> 00:13:28,520 Speaker 3: would have actually been helpful to Brian. I think I 243 00:13:28,559 --> 00:13:32,040 Speaker 3: don't believe his public defender ever even looked at the videos, 244 00:13:32,320 --> 00:13:35,920 Speaker 3: because I had to obtain those on my own. And 245 00:13:36,000 --> 00:13:39,240 Speaker 3: the public defender not only did he not investigate the case, 246 00:13:39,320 --> 00:13:43,680 Speaker 3: he didn't cross examine the witnesses. I believe Linda Taylor 247 00:13:43,800 --> 00:13:47,480 Speaker 3: was not asked one single question on cross examination, which 248 00:13:47,600 --> 00:13:48,959 Speaker 3: just blows my mind. 249 00:13:49,120 --> 00:13:52,240 Speaker 1: Yeah, this defense attorney, Brian May, he did no discovery 250 00:13:52,440 --> 00:13:56,360 Speaker 1: and now he's not cross examining. Was he just unable 251 00:13:56,400 --> 00:13:59,840 Speaker 1: to handle his caseload or was he, like maybe on 252 00:14:00,080 --> 00:14:04,880 Speaker 1: the prosecution's payroll. I mean, was this guy doing anything 253 00:14:05,600 --> 00:14:07,120 Speaker 1: at all to help you at trial? 254 00:14:07,480 --> 00:14:12,480 Speaker 4: Well, my trial was a three day trial and he 255 00:14:12,559 --> 00:14:17,559 Speaker 4: fell asleep sitting next to me during the trial three times, 256 00:14:18,440 --> 00:14:21,360 Speaker 4: and one of the times the judge called him out 257 00:14:21,400 --> 00:14:26,320 Speaker 4: on it. He walked him up and told him, can 258 00:14:26,400 --> 00:14:29,880 Speaker 4: we have you being attentive? Man? It says pretty much 259 00:14:29,880 --> 00:14:31,120 Speaker 4: everything that he did for me. 260 00:14:32,320 --> 00:14:35,840 Speaker 1: Jesus. Okay, so you did get up there to defend yourself. 261 00:14:36,360 --> 00:14:37,080 Speaker 1: How did that go? 262 00:14:37,760 --> 00:14:40,400 Speaker 4: Brian may never asked me if I was even guilty 263 00:14:40,520 --> 00:14:41,840 Speaker 4: or innocent, if. 264 00:14:41,680 --> 00:14:43,920 Speaker 3: Your theory is innocence, which in this case that was 265 00:14:43,960 --> 00:14:47,200 Speaker 3: always the theory. Brian didn't do this. If you put 266 00:14:47,200 --> 00:14:50,560 Speaker 3: your clan on the stand under those circumstances, you absolutely 267 00:14:50,640 --> 00:14:53,440 Speaker 3: have to ask them whether they did it or not, 268 00:14:53,720 --> 00:14:55,920 Speaker 3: because if you don't ask the question, then you're not 269 00:14:55,960 --> 00:14:58,520 Speaker 3: only planning a red flag in the minds of the jurors, 270 00:14:58,840 --> 00:15:01,400 Speaker 3: but you're also planning a red flag in the mind 271 00:15:01,400 --> 00:15:03,320 Speaker 3: of the Court of Appeals if it ever gets to 272 00:15:03,360 --> 00:15:06,000 Speaker 3: that phase, which of course it did, because the Court 273 00:15:06,000 --> 00:15:09,200 Speaker 3: of Appeals may make the erroneous presumption in this case 274 00:15:09,440 --> 00:15:12,240 Speaker 3: that the reason the attorney didn't ask the question is 275 00:15:12,280 --> 00:15:15,480 Speaker 3: because the attorney may have known otherwise and didn't want 276 00:15:15,520 --> 00:15:19,480 Speaker 3: to commit an ethical violation by eliciting perjury. 277 00:15:19,920 --> 00:15:22,920 Speaker 4: So I had to pipe up and say I didn't 278 00:15:22,960 --> 00:15:25,760 Speaker 4: do this. You know, I love my son, I did 279 00:15:25,760 --> 00:15:26,560 Speaker 4: not do this. 280 00:15:26,760 --> 00:15:30,000 Speaker 1: To put this public defender in the same category of 281 00:15:30,000 --> 00:15:32,400 Speaker 1: ineffective council that we've covered on this show would be 282 00:15:32,520 --> 00:15:37,280 Speaker 1: unfair to your garden variety in effective council. So there 283 00:15:37,320 --> 00:15:41,000 Speaker 1: you were on your own against ROBERTA and the state 284 00:15:41,240 --> 00:15:45,600 Speaker 1: with their almost unchecked power. They had child psychology professionals, 285 00:15:45,640 --> 00:15:49,600 Speaker 1: an allegedly grieving mother, and the testimony of a six 286 00:15:49,680 --> 00:15:53,280 Speaker 1: year old boy who had been coached and coerced over 287 00:15:53,280 --> 00:15:56,680 Speaker 1: the course of three years to repeat these horrific lies 288 00:15:57,560 --> 00:15:58,840 Speaker 1: about his own father. 289 00:16:00,160 --> 00:16:03,840 Speaker 3: Whenever a charge like this is brought before a jury, 290 00:16:04,000 --> 00:16:06,680 Speaker 3: they're disgusted by the charge, and I think that they 291 00:16:06,720 --> 00:16:10,920 Speaker 3: will err on the side of believing the child. I 292 00:16:10,960 --> 00:16:14,600 Speaker 3: think had they been given the actual evidence that was available, 293 00:16:14,640 --> 00:16:17,760 Speaker 3: what wasn't used, and had the state's witness has been 294 00:16:17,800 --> 00:16:21,520 Speaker 3: exposed to not even vigorous but just to adequate cross examination, 295 00:16:21,600 --> 00:16:23,480 Speaker 3: I think it would have been a totally different outcome 296 00:16:23,520 --> 00:16:24,000 Speaker 3: for Brian. 297 00:16:24,280 --> 00:16:28,800 Speaker 1: But the outcome here was sadly predictable. So on January fifteenth, 298 00:16:28,840 --> 00:16:30,880 Speaker 1: two thousand and three, you were convicted of Class A 299 00:16:31,040 --> 00:16:35,840 Speaker 1: child molestation and subsequently sentenced to forty years in prison. Brian, 300 00:16:36,120 --> 00:16:39,520 Speaker 1: can you take us back to that horrible, horrible moment 301 00:16:39,560 --> 00:16:40,960 Speaker 1: when they came back with the verdict. 302 00:16:41,160 --> 00:16:45,760 Speaker 4: Oh yeah, that's the moment you'd never forget My Then 303 00:16:46,240 --> 00:16:49,400 Speaker 4: Judy and I had gotten married. I heard Judy in 304 00:16:49,480 --> 00:16:54,760 Speaker 4: the courtroom scream out. I mean, it's a numbing feeling that, 305 00:16:55,120 --> 00:16:58,360 Speaker 4: you know, if you're guilty, you deserve it. If you're innocent, 306 00:16:58,640 --> 00:17:00,440 Speaker 4: why the hell would you deserve something like that. 307 00:17:14,520 --> 00:17:17,280 Speaker 1: The Pacers Foundation is a proud supporter of this episode 308 00:17:17,280 --> 00:17:20,480 Speaker 1: of Rawful Conviction and of the Last Mile organization, which 309 00:17:20,520 --> 00:17:24,720 Speaker 1: provides business and tech training to help incarcerated individuals successfully 310 00:17:24,760 --> 00:17:28,119 Speaker 1: and permanently re enter the workforce. The Pacers Foundation is 311 00:17:28,160 --> 00:17:31,800 Speaker 1: committed to improving the lives of Hoosiers across Indiana, supporting 312 00:17:31,920 --> 00:17:35,920 Speaker 1: organizations that are dedicated primarily to helping young people and students. 313 00:17:36,240 --> 00:17:38,760 Speaker 1: For more information on the work of the Pacers Foundation 314 00:17:39,000 --> 00:17:42,560 Speaker 1: or the Last Mile program, visit Pacersfoundation dot org or 315 00:17:42,560 --> 00:17:43,920 Speaker 1: the Lastmile dot org. 316 00:17:51,960 --> 00:17:54,280 Speaker 4: All you know was you're supposed to grow up to 317 00:17:54,400 --> 00:17:57,360 Speaker 4: be a good man. You're supposed to have a good 318 00:17:57,480 --> 00:18:00,359 Speaker 4: job and take care of your family. You know, you 319 00:18:00,359 --> 00:18:03,800 Speaker 4: don't pay attention to the legal system. You don't have 320 00:18:03,880 --> 00:18:05,920 Speaker 4: any need to really know it. You know, as long 321 00:18:05,960 --> 00:18:09,359 Speaker 4: as you abide by the laws that you've been taught 322 00:18:09,400 --> 00:18:13,639 Speaker 4: all your life, but you are also taught that you know, 323 00:18:13,920 --> 00:18:16,960 Speaker 4: prison's a bad place. Now you have to face this. 324 00:18:17,119 --> 00:18:19,560 Speaker 4: Now you're going into something you have no idea about. 325 00:18:19,840 --> 00:18:21,760 Speaker 1: I mean not to get into this, but we all 326 00:18:21,800 --> 00:18:24,200 Speaker 1: know how dangerous that place is for someone who's been 327 00:18:24,240 --> 00:18:28,159 Speaker 1: convicted of what you were, you know, framed for what 328 00:18:28,400 --> 00:18:30,119 Speaker 1: happened when you first got to prison. 329 00:18:31,160 --> 00:18:35,600 Speaker 4: I got put into what's called APOD, which is where 330 00:18:35,640 --> 00:18:40,359 Speaker 4: the high profile and the sex charges go, kind of 331 00:18:40,400 --> 00:18:44,680 Speaker 4: like protective custody. I never went outside for I think 332 00:18:44,680 --> 00:18:47,639 Speaker 4: it was nine months. I have been a professional person 333 00:18:47,680 --> 00:18:52,760 Speaker 4: all my life, never had a reason to know what 334 00:18:52,920 --> 00:18:57,040 Speaker 4: it's like behind the walls. But the Lord seeing a 335 00:18:57,119 --> 00:18:59,960 Speaker 4: purpose for me to be taken out of that life 336 00:19:00,080 --> 00:19:02,440 Speaker 4: and put into the other one. And I believe he 337 00:19:02,520 --> 00:19:05,280 Speaker 4: did have a purpose for me going there. You know. 338 00:19:05,400 --> 00:19:09,440 Speaker 4: I was a part of the PLUS program. 339 00:19:09,080 --> 00:19:12,000 Speaker 1: And PLUS stands for Purposeful Living Units SERVE and it's 340 00:19:12,000 --> 00:19:14,920 Speaker 1: a terrific program. As I'm led to understand. 341 00:19:14,880 --> 00:19:18,440 Speaker 4: It was really a wonderful thing. We won best prison 342 00:19:18,520 --> 00:19:22,480 Speaker 4: program through the world many years. I was the clerk. 343 00:19:22,840 --> 00:19:25,200 Speaker 4: You had to go to these classes, but me as 344 00:19:25,200 --> 00:19:28,760 Speaker 4: the clerk. I processed all the papers and passed out 345 00:19:28,800 --> 00:19:32,000 Speaker 4: people's graded papers, you know, stuck it under their doors, 346 00:19:32,000 --> 00:19:34,119 Speaker 4: handed it to him. Whatever. I got to be in 347 00:19:34,200 --> 00:19:37,080 Speaker 4: the classes, I got to set up the power points 348 00:19:37,080 --> 00:19:39,760 Speaker 4: for them. It's like I was the Plus program. 349 00:19:40,040 --> 00:19:42,879 Speaker 1: But meanwhile, all this time you're working on appealing your conviction. 350 00:19:42,960 --> 00:19:45,399 Speaker 1: Your first appeal was denied and the conviction was upheld. 351 00:19:45,440 --> 00:19:47,600 Speaker 1: And then in two thousand and four, still working on 352 00:19:47,640 --> 00:19:50,040 Speaker 1: your own, I might you file a post conviction petition 353 00:19:50,119 --> 00:19:52,400 Speaker 1: for a new trial based on your claim of ineffective 354 00:19:52,400 --> 00:19:55,640 Speaker 1: assistance of counsel. That that got shot down too, right? 355 00:19:55,960 --> 00:19:59,280 Speaker 4: Oh yeah, you never get any kind of traction when 356 00:19:59,320 --> 00:20:03,119 Speaker 4: you when you do it yourself basically. And then public 357 00:20:03,119 --> 00:20:07,000 Speaker 4: defenders they just filed the paper and it got shot down. 358 00:20:07,080 --> 00:20:08,600 Speaker 4: I mean, it's like a skeet shoot. 359 00:20:08,800 --> 00:20:11,760 Speaker 1: But then I believe your family had gotten the money 360 00:20:11,800 --> 00:20:14,080 Speaker 1: together to hire an attorney, And in two thousand and seven, 361 00:20:14,160 --> 00:20:16,479 Speaker 1: that's when you came onto the case, Cynthia. Right, So 362 00:20:17,000 --> 00:20:19,600 Speaker 1: when you first went and met with Brian at the prisoner, 363 00:20:19,680 --> 00:20:22,399 Speaker 1: heard his story, what was your initial impression. Did you 364 00:20:22,440 --> 00:20:24,320 Speaker 1: think he had a chance. 365 00:20:24,440 --> 00:20:25,960 Speaker 3: It seemed like it was going to be a tough 366 00:20:25,960 --> 00:20:29,240 Speaker 3: case to beat, just because of the nature of the allegations. 367 00:20:29,520 --> 00:20:33,280 Speaker 3: But Brian seemed sincere and his family was firmly in 368 00:20:33,320 --> 00:20:37,879 Speaker 3: his corner and they strongly believed in his innocence. I 369 00:20:37,880 --> 00:20:40,800 Speaker 3: think by then he and Judy were divorced and she 370 00:20:40,920 --> 00:20:44,879 Speaker 3: still believed in his innocence. Spend my experience in representing 371 00:20:44,960 --> 00:20:48,080 Speaker 3: criminal defendants that when the exes will stand behind you, 372 00:20:48,440 --> 00:20:51,960 Speaker 3: it's usually a pretty strong indication of character because generally 373 00:20:52,000 --> 00:20:54,080 Speaker 3: the ex wives and the ex girlfriends are the ones 374 00:20:54,119 --> 00:20:56,480 Speaker 3: who know where all the dirty laundry is. And if 375 00:20:56,480 --> 00:20:59,240 Speaker 3: they're still believing in this person, then that gives me 376 00:20:59,280 --> 00:21:01,560 Speaker 3: a pretty good feeling that this is this is somebody 377 00:21:01,640 --> 00:21:02,720 Speaker 3: I can I can help. 378 00:21:02,920 --> 00:21:05,320 Speaker 1: And as I understand it, there was a very important 379 00:21:05,320 --> 00:21:08,800 Speaker 1: person in your life who has since unfortunately passed away, 380 00:21:08,840 --> 00:21:11,679 Speaker 1: but who really helped you a lot with this case. 381 00:21:12,240 --> 00:21:16,440 Speaker 3: My mentor professor, Henry Carlson, who was my criminal law 382 00:21:16,440 --> 00:21:20,920 Speaker 3: and criminal procedure professor in law school. He read the transcripts. 383 00:21:20,960 --> 00:21:22,760 Speaker 3: He said, your client is innocent. I can tell by 384 00:21:22,800 --> 00:21:26,040 Speaker 3: reading the transcripts. The attorney did a terrible job. We 385 00:21:26,080 --> 00:21:29,280 Speaker 3: need an expert witness, and I think you should contact 386 00:21:29,400 --> 00:21:30,119 Speaker 3: Richard Lawler. 387 00:21:30,400 --> 00:21:32,760 Speaker 1: And Richard Lawla was an attorney and also a trained 388 00:21:32,800 --> 00:21:35,320 Speaker 1: psychologist who did agree to be your expert witness. 389 00:21:35,720 --> 00:21:41,720 Speaker 3: So myself, Professor Carlson, and doctor Lawler made a determination 390 00:21:41,880 --> 00:21:44,040 Speaker 3: that what was going to be important was to obtain 391 00:21:44,080 --> 00:21:49,640 Speaker 3: the play therapy records. So I sent my subpoenas and 392 00:21:49,680 --> 00:21:53,520 Speaker 3: nothing turned up from these subpoenas. They told me that 393 00:21:54,040 --> 00:21:57,440 Speaker 3: we moved and these play therapy records got less in 394 00:21:57,520 --> 00:22:01,320 Speaker 3: the move. Sorry, So I did the best I could 395 00:22:01,720 --> 00:22:04,000 Speaker 3: with what I had and we got the case worked 396 00:22:04,040 --> 00:22:05,320 Speaker 3: up and ready to go to trial. 397 00:22:05,960 --> 00:22:08,480 Speaker 1: But you did end up getting those records eventually, and 398 00:22:08,600 --> 00:22:11,320 Speaker 1: how you got them is really like a comedy of errors, 399 00:22:11,359 --> 00:22:12,920 Speaker 1: all starting with a snowstorm. 400 00:22:13,119 --> 00:22:16,600 Speaker 3: So the evidential you're hearing took place on December tenth, 401 00:22:16,640 --> 00:22:20,240 Speaker 3: twenty ten, which I believe was a Friday, very snowy 402 00:22:20,320 --> 00:22:22,720 Speaker 3: day in South Bend, Indiana. We went up the night 403 00:22:22,760 --> 00:22:27,680 Speaker 3: before so we could serve the subpoena. Again, I sent 404 00:22:28,040 --> 00:22:32,120 Speaker 3: my clerk. He goes to their office and again they say, 405 00:22:32,840 --> 00:22:35,800 Speaker 3: we don't have these notes. We already told you we 406 00:22:35,840 --> 00:22:38,840 Speaker 3: don't have them. So he's going to leave and come 407 00:22:38,880 --> 00:22:42,080 Speaker 3: back to the courthouse and he's reaching in his pockets 408 00:22:42,080 --> 00:22:45,160 Speaker 3: and he realizes he can't find the car keys, and 409 00:22:45,320 --> 00:22:48,359 Speaker 3: he thinks that he's locked the car keys in the car. 410 00:22:49,000 --> 00:22:51,720 Speaker 3: He also can't seem to find his cell phone, so 411 00:22:51,800 --> 00:22:56,160 Speaker 3: he flags down a snowplow, and the snowplow flags down 412 00:22:56,160 --> 00:22:59,280 Speaker 3: a police officer. So they're out there trying to slim 413 00:22:59,400 --> 00:23:01,959 Speaker 3: Jim the car to get into the car. And I 414 00:23:02,040 --> 00:23:05,320 Speaker 3: think what happened is the people inside the plate therapy 415 00:23:05,480 --> 00:23:07,480 Speaker 3: place looked out the one who and saw the police 416 00:23:07,480 --> 00:23:10,280 Speaker 3: and thought that we were serving process on our subpoena. 417 00:23:10,680 --> 00:23:13,000 Speaker 3: The young man that I had hired went back inside 418 00:23:13,359 --> 00:23:15,600 Speaker 3: to see if you could use their phone, and lo 419 00:23:15,720 --> 00:23:18,399 Speaker 3: and behold, they coughed up a stack of notes. 420 00:23:30,600 --> 00:23:33,760 Speaker 1: It's the day of your evidentiary hearing, and everything's on 421 00:23:33,800 --> 00:23:35,680 Speaker 1: the line. Now you're going up in front of Judge 422 00:23:35,760 --> 00:23:39,920 Speaker 1: Jerome Freeze and your expert witness, Doctor Richard Lawler, had 423 00:23:40,040 --> 00:23:42,000 Speaker 1: just an hour or so to go over those plate 424 00:23:42,040 --> 00:23:45,000 Speaker 1: therapy records right before he got up to testify. 425 00:23:45,440 --> 00:23:50,280 Speaker 3: And essentially what doctor Lawler's testimony was able to illuminate 426 00:23:50,359 --> 00:23:54,959 Speaker 3: is the concept of confabulation. The notes basically were the 427 00:23:54,960 --> 00:23:58,680 Speaker 3: evidence that showed that the child was groomed to testify 428 00:23:58,840 --> 00:24:03,880 Speaker 3: against Brian. There was definitely some leading questions. The therapist 429 00:24:03,920 --> 00:24:08,159 Speaker 3: would refer to Brian as Brian rather than the dad, 430 00:24:08,520 --> 00:24:12,200 Speaker 3: and at the beginning of the testimony, when the prosecutor asked, Michael, 431 00:24:12,400 --> 00:24:14,080 Speaker 3: do you have a dad that I did but now 432 00:24:14,119 --> 00:24:19,560 Speaker 3: I don't, the therapist introduced the topic of secrets, the 433 00:24:19,600 --> 00:24:22,880 Speaker 3: idea of giving the child a power badge to where 434 00:24:23,000 --> 00:24:25,199 Speaker 3: to help tell the truth. They also gave him a 435 00:24:25,440 --> 00:24:27,680 Speaker 3: policeman ring to give him power. 436 00:24:28,000 --> 00:24:30,439 Speaker 4: There was at one point there was something about his 437 00:24:30,600 --> 00:24:33,399 Speaker 4: mom was threatening to take his cat away if he 438 00:24:33,440 --> 00:24:36,879 Speaker 4: didn't say what they wanted him to say. One of 439 00:24:36,920 --> 00:24:40,439 Speaker 4: the handwritten notes said that Michael Scott is finally saying 440 00:24:40,520 --> 00:24:41,919 Speaker 4: what we want him to say. 441 00:24:42,200 --> 00:24:44,800 Speaker 3: And because no one obtained the notes bright to trial, 442 00:24:45,000 --> 00:24:48,080 Speaker 3: there was no cross there was no testimony whatsoever about this. 443 00:24:48,440 --> 00:24:50,800 Speaker 3: I don't even know if the prosecution saw these notes. 444 00:24:51,240 --> 00:24:53,760 Speaker 1: And while the therapists did get him to say what they 445 00:24:53,800 --> 00:24:57,920 Speaker 1: wanted through this conditioning and what sounds like punitive measures, 446 00:24:58,560 --> 00:25:02,680 Speaker 1: Michael Scott also ode said some things that didn't really 447 00:25:02,800 --> 00:25:05,960 Speaker 1: track with the allegations. In fact, they didn't even make 448 00:25:05,960 --> 00:25:06,600 Speaker 1: any sense. 449 00:25:07,119 --> 00:25:10,280 Speaker 3: One of the things that the little boy said is 450 00:25:10,320 --> 00:25:14,600 Speaker 3: that when he supposedly had this encounter with the oral sex, 451 00:25:14,640 --> 00:25:20,240 Speaker 3: that it tasted like green jello. Obviously not true. Another 452 00:25:20,359 --> 00:25:23,600 Speaker 3: thing that we noticed was that when he drew a picture, 453 00:25:24,359 --> 00:25:27,040 Speaker 3: which was supposedly a picture of that father's penis, the 454 00:25:27,080 --> 00:25:31,000 Speaker 3: hair was on the shaft. Obviously untrue. But these are 455 00:25:31,040 --> 00:25:33,520 Speaker 3: things that happen when there is a confabulation. When this 456 00:25:33,640 --> 00:25:36,879 Speaker 3: story is planted in a child's mind, eventually the child 457 00:25:36,920 --> 00:25:39,520 Speaker 3: comes to believe that it's real, especially with a very 458 00:25:39,560 --> 00:25:43,960 Speaker 3: young child, and they fill in details to supplement what 459 00:25:44,040 --> 00:25:47,240 Speaker 3: they believe to be true. But the details are wrong. 460 00:25:47,960 --> 00:25:50,080 Speaker 1: So you've brought in this expert witness and all this 461 00:25:50,160 --> 00:25:52,800 Speaker 1: powerful new evidence, along with the deposition from your mentor 462 00:25:52,840 --> 00:25:56,200 Speaker 1: Henry Carlson, all of which forms are very powerful argument 463 00:25:56,240 --> 00:25:58,480 Speaker 1: for not only in effective assistance of counsel, but also 464 00:25:58,560 --> 00:26:01,439 Speaker 1: witness tampering and manipulation. And on top of that, you 465 00:26:01,480 --> 00:26:03,760 Speaker 1: had one more witness who was going to be absolutely 466 00:26:03,800 --> 00:26:04,879 Speaker 1: crucial to the case. 467 00:26:05,160 --> 00:26:10,000 Speaker 3: The initial therapist that did the play therapy was Kathy Steinman. 468 00:26:10,720 --> 00:26:13,719 Speaker 3: And the one other thing that was made clear to 469 00:26:13,840 --> 00:26:16,800 Speaker 3: us whenever we did obtain the notes is that somebody 470 00:26:16,840 --> 00:26:20,040 Speaker 3: else had signed her name and put their initials after it, 471 00:26:20,760 --> 00:26:23,640 Speaker 3: and she had moved to Michigan. She did not want 472 00:26:23,640 --> 00:26:26,800 Speaker 3: to drive to South Bend to do the trial. She 473 00:26:26,880 --> 00:26:31,200 Speaker 3: ended up testifying by telephone on December tenth, twenty ten, 474 00:26:31,520 --> 00:26:32,040 Speaker 3: which was. 475 00:26:32,000 --> 00:26:35,240 Speaker 1: The day you concluded your case, but Judge Freeze didn't 476 00:26:35,280 --> 00:26:37,040 Speaker 1: give you a ruling that day. He told you to 477 00:26:37,080 --> 00:26:39,880 Speaker 1: come back a month later to make your closing arguments, 478 00:26:39,960 --> 00:26:44,919 Speaker 1: and then, to your shock and devastation, Judge Freeze denied 479 00:26:44,960 --> 00:26:48,040 Speaker 1: the post conviction relief. But I mean, he's here with 480 00:26:48,119 --> 00:26:50,680 Speaker 1: us today, right now, right, So then what happened. 481 00:26:50,760 --> 00:26:53,560 Speaker 3: Brian and I were actually going to appeal the decision 482 00:26:54,160 --> 00:26:56,320 Speaker 3: and had actually, I think even gone so far as 483 00:26:56,320 --> 00:27:00,000 Speaker 3: the file the notice of appeal, but then the judge 484 00:27:00,040 --> 00:27:02,639 Speaker 3: judge had second thoughts and had his staff call me 485 00:27:02,680 --> 00:27:06,200 Speaker 3: and ask if I wanted to reopen the evidence because 486 00:27:06,200 --> 00:27:08,760 Speaker 3: he said he didn't think it was quite fair that 487 00:27:08,840 --> 00:27:11,240 Speaker 3: we had been given the notes in the middle of 488 00:27:11,320 --> 00:27:14,560 Speaker 3: the trial, and also it was difficult to hear the 489 00:27:14,560 --> 00:27:16,600 Speaker 3: witness on the phone and it would be better if 490 00:27:16,600 --> 00:27:21,919 Speaker 3: she could come in person. So we did that in February. 491 00:27:22,320 --> 00:27:25,960 Speaker 3: Then the judge took it under advisement. Judge Freeze wrote 492 00:27:26,000 --> 00:27:29,120 Speaker 3: his own findings, and he did that in May. 493 00:27:29,280 --> 00:27:31,240 Speaker 1: And that was in May of twenty eleven, just a 494 00:27:31,240 --> 00:27:34,159 Speaker 1: few months after denying your PCR request. Judge Freeze then 495 00:27:34,200 --> 00:27:37,720 Speaker 1: issued his final ruling, granting post conviction relief and basically 496 00:27:37,760 --> 00:27:42,280 Speaker 1: overturning your conviction. That must have been an unbelievable day 497 00:27:42,280 --> 00:27:42,840 Speaker 1: for you, Brian. 498 00:27:43,080 --> 00:27:46,800 Speaker 4: Well, it ain't like, okay, it's overturned and we opened 499 00:27:46,800 --> 00:27:49,760 Speaker 4: the doors and let you out. It's don't work that way. 500 00:27:50,520 --> 00:27:52,520 Speaker 4: I think I was in there for it was either 501 00:27:52,560 --> 00:27:56,200 Speaker 4: three weeks or a month deemed an innocent man. Now 502 00:27:56,200 --> 00:27:59,119 Speaker 4: you don't tell nobody that when you're in prison, because 503 00:27:59,160 --> 00:28:02,600 Speaker 4: they'll do what's called jack your time. They'll cause problems 504 00:28:02,640 --> 00:28:05,879 Speaker 4: with you so that you get in trouble and you 505 00:28:05,920 --> 00:28:08,280 Speaker 4: don't get to leave on time. So here I am 506 00:28:08,400 --> 00:28:11,800 Speaker 4: busting at the seams, and only my closest friends in 507 00:28:11,880 --> 00:28:15,720 Speaker 4: prison that I allow to know I'm getting out until 508 00:28:15,760 --> 00:28:19,600 Speaker 4: the morning that they packed me out, and I'm walking 509 00:28:19,600 --> 00:28:23,080 Speaker 4: out and shaking hands with guys. Tell him it's nice 510 00:28:23,080 --> 00:28:25,639 Speaker 4: to meet you. I got my case overturned. I'm going home. 511 00:28:26,840 --> 00:28:29,000 Speaker 4: So I get up there and finally get to go 512 00:28:29,080 --> 00:28:32,879 Speaker 4: before the judge and he releases me, and one of 513 00:28:32,920 --> 00:28:35,320 Speaker 4: the happiest days of my life. When you walk out 514 00:28:35,359 --> 00:28:39,920 Speaker 4: of that prison, your depths. You don't realize how far 515 00:28:40,080 --> 00:28:44,160 Speaker 4: you can see. And when you walk out a free man, 516 00:28:45,440 --> 00:28:51,160 Speaker 4: everything you're able to not ask the guard if I can, 517 00:28:51,400 --> 00:28:56,600 Speaker 4: can I hug my mom. 518 00:28:54,680 --> 00:28:57,640 Speaker 1: And now she's standing right there waiting for you, along 519 00:28:57,680 --> 00:28:58,320 Speaker 1: with her posse. 520 00:28:59,520 --> 00:29:02,800 Speaker 4: My mom grew up best friends with five other women. 521 00:29:02,880 --> 00:29:05,640 Speaker 4: There were six of them that were all good friends. 522 00:29:05,840 --> 00:29:09,120 Speaker 4: They were all there. They had a motel room and 523 00:29:09,200 --> 00:29:12,720 Speaker 4: the banquet room set up so we could have a 524 00:29:12,760 --> 00:29:14,880 Speaker 4: coming out party. It was great. 525 00:29:15,160 --> 00:29:17,480 Speaker 1: You eventually filed a federal civil rights suit against Saint 526 00:29:17,560 --> 00:29:20,560 Speaker 1: Joseph County. But the truth is there's nothing. There's no 527 00:29:20,600 --> 00:29:23,520 Speaker 1: amount that could ever repay you for what you went through. 528 00:29:23,760 --> 00:29:25,960 Speaker 4: No put a price on your life for a year. 529 00:29:26,720 --> 00:29:29,880 Speaker 4: You can't. There's no price. I mean, what are you 530 00:29:29,880 --> 00:29:32,720 Speaker 4: going to do go back and say, well, his wages 531 00:29:32,800 --> 00:29:34,880 Speaker 4: for the year was this, So that's the value of 532 00:29:34,920 --> 00:29:38,800 Speaker 4: his life and where I was your life in danger 533 00:29:39,640 --> 00:29:43,480 Speaker 4: every day, So how do you put a price on that? 534 00:29:44,520 --> 00:29:47,280 Speaker 1: Our listeners, is there anything that they can do? To 535 00:29:47,320 --> 00:29:48,880 Speaker 1: help or anything that you need. 536 00:29:49,520 --> 00:29:52,320 Speaker 4: Well, the biggest thing that I could ask for is 537 00:29:52,400 --> 00:29:57,560 Speaker 4: just prayer. You know people want to say money, money, money, Well, 538 00:29:57,760 --> 00:29:59,840 Speaker 4: somebody could lay one hundred dollars a bill in your hand. 539 00:30:00,400 --> 00:30:03,920 Speaker 4: You know that's worth one hundred dollars, But you can't 540 00:30:03,960 --> 00:30:06,680 Speaker 4: even put a price on a prayer and prayers what 541 00:30:06,800 --> 00:30:09,640 Speaker 4: got me through. There are so many people praying for me, 542 00:30:09,720 --> 00:30:13,600 Speaker 4: and nobody let God forget about Brian. 543 00:30:14,800 --> 00:30:17,240 Speaker 1: So what are you doing now? Have you been able 544 00:30:17,280 --> 00:30:18,800 Speaker 1: to pick up some of the pieces. 545 00:30:19,200 --> 00:30:21,960 Speaker 4: I went back to being a decent mechanic. I just 546 00:30:22,000 --> 00:30:27,000 Speaker 4: try to enjoy every day. You learn to appreciate walking 547 00:30:27,120 --> 00:30:33,240 Speaker 4: outside and smelling the air. I even like flowers nowadays. 548 00:30:33,560 --> 00:30:39,240 Speaker 4: I never never thought anything about colorful flowers, but you 549 00:30:39,280 --> 00:30:40,560 Speaker 4: sure do appreciate them now. 550 00:30:41,760 --> 00:30:43,720 Speaker 1: And now we're going to turn to my favorite part 551 00:30:43,720 --> 00:30:46,400 Speaker 1: of the show, which we call closing arguments. I'm just 552 00:30:46,480 --> 00:30:49,840 Speaker 1: gonna turn off my mic, kick back in my chair 553 00:30:49,880 --> 00:30:54,640 Speaker 1: and listen as you guys say whatever else you feel 554 00:30:54,680 --> 00:30:58,080 Speaker 1: is left to be said. The floor is yours, So 555 00:30:58,120 --> 00:31:00,760 Speaker 1: thank you again for being here. Dear, why don't you 556 00:31:00,800 --> 00:31:04,480 Speaker 1: start us off and then Brian you take us out? 557 00:31:05,200 --> 00:31:07,640 Speaker 3: What I would say, more so than anything, is just 558 00:31:07,760 --> 00:31:13,800 Speaker 3: how valuable the Constitution is in protecting people's freedoms. And 559 00:31:14,640 --> 00:31:17,880 Speaker 3: if a person's constitutional rights have been violated and they 560 00:31:17,920 --> 00:31:21,160 Speaker 3: don't get a fair trial trial, judges should not be 561 00:31:21,280 --> 00:31:26,840 Speaker 3: afraid to overturned convictions, Prosecutors should not be afraid to 562 00:31:27,000 --> 00:31:32,000 Speaker 3: revisit wrongful convictions because freedom is too precious and too 563 00:31:32,080 --> 00:31:34,880 Speaker 3: valuable for someone to have to sit in prison for 564 00:31:35,000 --> 00:31:39,640 Speaker 3: something that they didn't do. And in negotiating with prosecutors 565 00:31:39,640 --> 00:31:42,560 Speaker 3: and pleading cases to judges, you know, sometimes the best 566 00:31:42,560 --> 00:31:44,760 Speaker 3: thing that you can do is ask for mercy and grace. 567 00:31:45,080 --> 00:31:48,680 Speaker 3: And even for people that are in prison for something 568 00:31:48,680 --> 00:31:52,480 Speaker 3: they actually did, sometimes the senses are too long. But 569 00:31:52,680 --> 00:31:54,960 Speaker 3: for people to be in prison for something that they 570 00:31:54,960 --> 00:31:59,560 Speaker 3: didn't do, that's just evil. Brian is a good example 571 00:31:59,600 --> 00:32:03,920 Speaker 3: of this. And I just hope that you know, for 572 00:32:04,040 --> 00:32:06,200 Speaker 3: people out there that are doing this kind of work, 573 00:32:06,240 --> 00:32:09,080 Speaker 3: that they don't lose heart, and that judges who are 574 00:32:09,160 --> 00:32:12,520 Speaker 3: presented with cases like this will have the courage to 575 00:32:12,600 --> 00:32:13,360 Speaker 3: do the right thing. 576 00:32:14,160 --> 00:32:17,800 Speaker 2: As strange as it sounds, I feel like I'm pretty blessed. 577 00:32:18,360 --> 00:32:20,640 Speaker 2: The Lord showed me a lot and had me do 578 00:32:20,720 --> 00:32:24,680 Speaker 2: a lot of what I think is good being there 579 00:32:24,680 --> 00:32:29,560 Speaker 2: in prison with the Plus program. It sounds crazy, but 580 00:32:29,640 --> 00:32:32,200 Speaker 2: I feel like I'm a blessed man. 581 00:32:33,000 --> 00:32:37,800 Speaker 4: I'm definitely blessed. I finally prove of my innocence, but 582 00:32:38,480 --> 00:32:41,920 Speaker 4: I'll never know what it's like to have a son, 583 00:32:43,120 --> 00:32:45,880 Speaker 4: So I hate it that he lives a life lies, 584 00:32:46,760 --> 00:32:49,720 Speaker 4: but I pray for him every day. The guy puts 585 00:32:49,760 --> 00:32:53,480 Speaker 4: angels in his life to lead him and protecting, and 586 00:32:53,560 --> 00:32:57,320 Speaker 4: the justice system ain't a justice system. It's about as 587 00:32:57,320 --> 00:33:00,440 Speaker 4: fucked up as it comes. 588 00:33:04,720 --> 00:33:07,920 Speaker 1: Thank you for listening to Wrongful Conviction Special thanks to 589 00:33:07,960 --> 00:33:11,960 Speaker 1: our amazing production team Connor hall, Any, Chelsea, Jeff Clyburn, 590 00:33:12,040 --> 00:33:15,600 Speaker 1: and Kevin Wartis, with research by Lyla Robinson. The music 591 00:33:15,640 --> 00:33:18,600 Speaker 1: in this production was supplied by three time OSCAR nominated 592 00:33:18,600 --> 00:33:21,840 Speaker 1: composer Jay Ralph. Make sure to follow us on Instagram 593 00:33:21,880 --> 00:33:25,760 Speaker 1: at Wrongful Conviction, on Facebook at Wrongful Conviction Podcast, and 594 00:33:25,880 --> 00:33:29,560 Speaker 1: on Twitter at wrong Conviction, as well as at Lava 595 00:33:29,600 --> 00:33:33,040 Speaker 1: for Good. On all three platforms, you can also follow 596 00:33:33,120 --> 00:33:36,600 Speaker 1: on TikTok and Instagram at its Jason Flamm. That's It's 597 00:33:36,800 --> 00:33:40,320 Speaker 1: Jason Flamm. Wrongful Conviction is a production of Lava for 598 00:33:40,400 --> 00:33:44,040 Speaker 1: Good Podcasts. And association with signal Company number one