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