WEBVTT - #343 Jason Flom with Brian Neirynck 0:00:00.160 --> 0:00:03.400 Hey, it's Jason, just letting you know that Wrongful Conviction 0:00:03.560 --> 0:00:06.320 is going to take a short hiatus. Wrongful Conviction with 0:00:06.400 --> 0:00:10.200 Maggie Freeling will continue to drop every Monday, but after today. 0:00:10.280 --> 0:00:13.040 The next new episode of Wrongful Conviction with Yours Truly 0:00:13.080 --> 0:00:17.360 will drop on Thursday, April thirteenth. However, if you want 0:00:17.360 --> 0:00:19.960 to begin hearing new episodes one week early, you can 0:00:20.000 --> 0:00:24.000 subscribe to our feed through Apple Plus. All subscribers will 0:00:24.000 --> 0:00:27.360 hear new episodes of all of our podcasts add free, 0:00:27.840 --> 0:00:31.080 one week before everybody else. So get in the know 0:00:31.640 --> 0:00:37.640 one week early with an Apple Plus subscription. Brian Derek 0:00:37.720 --> 0:00:41.200 and Roberta Smedley met in Plymouth, Indiana in nineteen ninety four, 0:00:41.240 --> 0:00:45.199 and before long they were inseparable. Two years later, they 0:00:45.240 --> 0:00:48.280 had a son, Michael Scott. By the time the boy 0:00:48.360 --> 0:00:51.320 was almost three years old, the relationship at con sour. 0:00:51.800 --> 0:00:54.760 Roberta kicked Brian out of the house, got a restraining order, 0:00:55.040 --> 0:00:58.760 and cleaned out his bank account. Eventually, a bitter custody 0:00:58.800 --> 0:01:02.760 battle ensued. In June of two thousand, after the boy 0:01:02.800 --> 0:01:05.760 had returned from a visit with Brian, Roberta reported to 0:01:05.800 --> 0:01:08.120 police that Michael Scott had told her that he had 0:01:08.160 --> 0:01:11.720 been molested by his father. The Department of Child Services 0:01:11.760 --> 0:01:16.600 investigated the allegations. Brian's visitation rights were suspended and Michael 0:01:16.600 --> 0:01:20.600 Scott was sent to play therapy. Three years later, at trial, 0:01:20.959 --> 0:01:25.640 Roberta and the therapist repeated the accusations against Brian. Michael Scott, 0:01:25.720 --> 0:01:28.559 now six years old, testified to say that his father 0:01:28.680 --> 0:01:32.640 had in fact done what his mother had alleged. Brian's 0:01:32.640 --> 0:01:34.800 only defense was to say that he loved his son 0:01:34.840 --> 0:01:37.960 and would never hurt him against the testimony of an 0:01:37.959 --> 0:01:43.160 impressionable child. Three years worth of notes and videotape therapy 0:01:43.240 --> 0:01:47.680 sessions probably helped nothing of interest to the jury. But 0:01:47.800 --> 0:02:03.480 this is wrongful conviction. Welcome back to ronful conviction. Today's 0:02:03.520 --> 0:02:06.280 story comes to us from Saint Joseph's County, Indiana, and 0:02:06.320 --> 0:02:09.520 it's about one of the most horrific things that anyone 0:02:09.520 --> 0:02:12.840 can imagine as a parent. And I'm speaking as a parent, 0:02:12.919 --> 0:02:17.600 but this would be horrific to any normal human person. 0:02:18.480 --> 0:02:22.360 I'm talking about the crime of child molestation. And the 0:02:22.480 --> 0:02:26.560 thing is it never happened. It was a story cooked 0:02:26.639 --> 0:02:29.680 up as ammunition for a custody battle, and unfortunately, an 0:02:29.680 --> 0:02:33.000 innocent child was used to bolster the charge by being 0:02:33.040 --> 0:02:36.040 groomed to testify against his own father. That's the real 0:02:36.120 --> 0:02:40.359 child abuse. By the way, our guest today is Brian Erik. Brian, 0:02:40.560 --> 0:02:41.720 welcome to WRON for conviction. 0:02:41.919 --> 0:02:42.240 Thank you. 0:02:42.639 --> 0:02:46.120 And also with us is Cynthia Carter, Indiana criminal defense 0:02:46.160 --> 0:02:49.720 attorney and self described recovering public defender who was Brian's 0:02:49.760 --> 0:02:52.840 post conviction attorney. So Cynthia welcome, Thank you. 0:02:52.960 --> 0:02:54.440 Jason. Really great to be here. 0:02:55.040 --> 0:02:57.799 Brian. Let's start with you. Where did you grow up? 0:02:58.080 --> 0:03:01.359 Right outside of South ben Indiana, little town called Walkerton. 0:03:01.480 --> 0:03:04.520 It was just a small town. My family could have 0:03:04.560 --> 0:03:11.200 been considered lower middle class, good family structure, mom, dad, brother. 0:03:11.200 --> 0:03:14.400 And then around nineteen eighty four you started seeing Roberta Smedley. 0:03:14.560 --> 0:03:15.919 Where did you two meet. 0:03:16.000 --> 0:03:20.919 At the Blueberry Festival in Plymouth, Indiana. We were together 0:03:21.280 --> 0:03:24.000 I think six years overall for the most part, it 0:03:24.080 --> 0:03:24.840 was always good. 0:03:25.000 --> 0:03:27.240 And a couple of years later you found out that 0:03:27.320 --> 0:03:30.120 Roberta was pregnant. Were you excited about becoming a father? 0:03:30.600 --> 0:03:33.000 Yeah, it was great. I was looking forward to being 0:03:33.040 --> 0:03:36.240 a dad. You know, it's every boy's dream. I assume 0:03:36.320 --> 0:03:39.600 every boy's dream. It was mine through the pregnancy. I 0:03:39.640 --> 0:03:43.960 went to every one of the doctor meetings, birthing class, 0:03:44.000 --> 0:03:46.400 and I was there when he was born. It was 0:03:46.680 --> 0:03:49.200 the greatest thing ever in my life. 0:03:49.640 --> 0:03:52.800 So now you, Roberta, and your son Michael Scott are 0:03:52.800 --> 0:03:55.360 a family, and for all intents and purposes, it sounds 0:03:55.360 --> 0:03:57.640 like life was going pretty well for a while, right. 0:03:57.760 --> 0:03:59.560 I mean, you had a steady job and we're building 0:03:59.600 --> 0:04:00.480 a life together. 0:04:01.000 --> 0:04:04.080 I was working in a machine shop as a machinist 0:04:04.160 --> 0:04:08.040 assembler and going to work every day, ten twelve hour 0:04:08.200 --> 0:04:12.320 days and coming home every night to my family. Michael 0:04:12.320 --> 0:04:14.720 Scott and I had a great relationship. I mean I 0:04:14.760 --> 0:04:17.760 was always involved in his life. He was the center 0:04:17.800 --> 0:04:20.480 of my life. And one day I come home from 0:04:20.520 --> 0:04:24.640 work and she tells me you've got to get out. 0:04:24.920 --> 0:04:26.279 And I said, what do you mean I got to 0:04:26.279 --> 0:04:28.800 get out? She says, well, I got a restraining order 0:04:28.839 --> 0:04:30.640 against you and you've got to move out. 0:04:30.920 --> 0:04:33.440 This just came out of the blue, without any warning 0:04:33.480 --> 0:04:36.760 at all. Do you have any idea what that was 0:04:36.800 --> 0:04:37.359 all about. 0:04:37.920 --> 0:04:41.840 She just always got whatever she wanted, and you know, 0:04:41.920 --> 0:04:45.280 she wanted a child and she got it and then 0:04:45.400 --> 0:04:47.720 got rid of me. So I ended up going out 0:04:47.760 --> 0:04:51.520 to my dad's and staying with him until I finally 0:04:52.040 --> 0:04:55.560 got an apartment and one of my ex girlfriend came 0:04:55.640 --> 0:04:57.920 back into my life and his life, and she just 0:04:57.960 --> 0:04:59.200 adored Michael Scott. 0:04:59.320 --> 0:05:01.960 Yeah, your girlfri So Michael Scott was around three years 0:05:01.960 --> 0:05:04.360 old at this point and living with his mother full time. 0:05:04.400 --> 0:05:06.880 But you and Roberta had worked out some kind of 0:05:06.960 --> 0:05:08.240 visitation agreement, right. 0:05:08.680 --> 0:05:12.279 I was there every Wednesday and every other weekend. I 0:05:12.360 --> 0:05:16.040 had him and we did everything we could together. We'd 0:05:16.520 --> 0:05:18.600 fill the car up with balloons. I had a four 0:05:18.640 --> 0:05:22.040 door of Crown Victoria and we'd go down the road 0:05:22.120 --> 0:05:24.320 and roll the windows down and the balloons would fly 0:05:24.440 --> 0:05:28.599 around and fly out. It was wonderful. Michael Scott loved 0:05:28.600 --> 0:05:31.840 being with me. I bought a house Judy and I 0:05:31.880 --> 0:05:35.400 moved into it. It was a nice two story house. 0:05:36.279 --> 0:05:38.760 Michael Scott would come over. He had his own bedroom. 0:05:39.360 --> 0:05:42.320 He had a walk in closet that we were sitting 0:05:42.360 --> 0:05:46.360 there with markers and right all over the walls, throw 0:05:46.400 --> 0:05:49.920 the ball up and down the steps, and like I said, 0:05:49.920 --> 0:05:52.000 I thought we had it going on. It was more 0:05:52.040 --> 0:05:55.800 stable than his house. You know. He would always say, 0:05:55.960 --> 0:05:58.760 Mom's going out drinking or Mom was drunk. 0:05:58.960 --> 0:06:01.120 So around this time is when you decide to hire 0:06:01.120 --> 0:06:03.880 a lawyer, Greg Blandford and push for full custody of 0:06:03.920 --> 0:06:04.320 your son. 0:06:04.760 --> 0:06:07.880 I wanted to have him with me, and I thought 0:06:07.920 --> 0:06:10.520 it was better for him to be with Judy and I, 0:06:11.400 --> 0:06:16.760 you know, I felt it was more safe. At one point, 0:06:16.839 --> 0:06:20.400 Roberta had sent my mom a picture of Michael Scott 0:06:20.839 --> 0:06:22.839 and it was a picture of Michael Scott and his 0:06:22.920 --> 0:06:27.240 little buddy Max, and they were both drinking a beer. 0:06:28.360 --> 0:06:30.680 So I presented that to the court. I think that's 0:06:30.720 --> 0:06:35.200 what flipped her switch to make up all these lies. 0:06:35.080 --> 0:06:37.159 In June two thousand, that's when you find out just 0:06:37.200 --> 0:06:39.520 what kind of lies should be willing to make up. 0:06:40.120 --> 0:06:43.159 Then I come home from work one day and Judy 0:06:43.240 --> 0:06:45.479 meets me at the door and she says, get in 0:06:45.520 --> 0:06:48.680 the house. She says, there's a warrant for your arrest, 0:06:48.920 --> 0:06:52.640 And I said for what She says, They said that 0:06:52.680 --> 0:06:55.360 you did something to Michael Scott. Right. 0:06:55.440 --> 0:07:00.359 The police report was June second, two thousand, and the 0:07:00.440 --> 0:07:05.520 police talked to Roberta and she reported that the child 0:07:05.839 --> 0:07:09.800 had reported that Brian was doing things to him and 0:07:09.840 --> 0:07:11.400 that he didn't like his father's peepee. 0:07:11.920 --> 0:07:15.000 And so I called my family attorney, the one that 0:07:15.360 --> 0:07:19.080 was working with me to get custody, and he says, 0:07:19.560 --> 0:07:22.800 they're alligating that you did something to Michael Scott sexually. 0:07:23.120 --> 0:07:27.480 And I said, that's impossible, Greg, it didn't happen. He said, well, 0:07:27.520 --> 0:07:28.520 this is what's happening. 0:07:28.680 --> 0:07:32.760 These are really serious allegations, of course, but initially there 0:07:32.840 --> 0:07:36.240 was a wide gap between what Roberta alleged that Michael 0:07:36.320 --> 0:07:39.680 Scott had said and what Michael Scott was actually saying. 0:07:39.880 --> 0:07:43.720 So then I find out that what he's saying is Doggie, 0:07:43.800 --> 0:07:47.640 Dad and grass. That's all he was saying. I mean, 0:07:47.680 --> 0:07:51.360 it was nothing. Everybody's just kind of laughing about this 0:07:51.560 --> 0:07:55.320 because they know Brian. They know this isn't possible. This 0:07:55.480 --> 0:07:57.160 was all craziness. 0:07:57.280 --> 0:07:59.960 When these kinds of allegations are leveled, Apartment of Children 0:08:00.080 --> 0:08:04.040 Services or DCS must get involved by law. And there 0:08:04.120 --> 0:08:06.200 was a physical examination done too. 0:08:06.280 --> 0:08:10.880 And they didn't notice any injury to the child, just 0:08:11.440 --> 0:08:15.320 some redness and there was no internal examination done, but 0:08:15.400 --> 0:08:17.480 there were no injuries to Brian's son. 0:08:17.640 --> 0:08:20.560 Michael Scott was interviewed by a therapist at a child 0:08:20.640 --> 0:08:23.360 abuse investigation center called the Casey Center. 0:08:23.560 --> 0:08:28.520 They interviewed Michael Scott and he says, my dad don't 0:08:28.560 --> 0:08:30.880 do nothing to me. I mean, this was on video 0:08:31.200 --> 0:08:33.320 and they're trying to get him to say something is 0:08:33.360 --> 0:08:34.560 not saying anything. 0:08:34.960 --> 0:08:39.640 So these sessions were videotaped, but Brian's attorney never even 0:08:39.760 --> 0:08:43.000 reviewed them or presented to the court during his trial. 0:08:43.040 --> 0:08:45.720 But this is what we know now, So it sounds 0:08:45.760 --> 0:08:48.480 like the allegations were not being made by the alleged victim, 0:08:48.480 --> 0:08:53.160 Michael Scott, but rather just coming from the mind of Roberta. Nevertheless, 0:08:53.200 --> 0:08:55.720 Brian's visitation rights were suspended and he wasn't allowed to 0:08:55.720 --> 0:08:58.720 see his son. Then in October two thousand, they stopped 0:08:58.720 --> 0:09:01.280 the investigation because thing had really come out of it, 0:09:01.320 --> 0:09:03.920 But it sounds like Roberta was still not anywhere near 0:09:04.200 --> 0:09:05.480 letting up with her story. 0:09:05.720 --> 0:09:12.120 It's interesting because the allegations actually evolved over time. When 0:09:12.480 --> 0:09:15.560 the mother first spoke to the police, she said she 0:09:15.760 --> 0:09:18.680 was wiping the child after he went to the bathroom 0:09:18.920 --> 0:09:21.800 and the child supposedly said, don't put your finger there, 0:09:21.880 --> 0:09:25.480 that hurts. And then the things that Brian mentioned about 0:09:25.640 --> 0:09:30.480 Daddy dog grass, So that's what led to the initial 0:09:31.280 --> 0:09:37.120 physical examination. Well, then come November of two thousand, the 0:09:37.200 --> 0:09:41.720 allegation changed. Then the allegation was that he put his 0:09:41.760 --> 0:09:44.760 peep in my mouth, So that was a totally different 0:09:44.800 --> 0:09:46.960 allegation than what was made in the first place. 0:09:47.360 --> 0:09:50.679 That went on for over a year, just those allegations, 0:09:51.280 --> 0:09:55.120 and then the other warrant came up that says, oh, 0:09:55.240 --> 0:09:58.120 we have enough. They want to grand jury, we have 0:09:58.320 --> 0:09:59.920 enough to try him criminal. 0:10:00.480 --> 0:10:02.959 During that year, unbeknownst to you, Michael Scott was being 0:10:03.000 --> 0:10:05.640 sent to this place called Holy Cross Counseling Center for 0:10:05.679 --> 0:10:09.360 play therapy once a week, where they were basically feeding 0:10:09.440 --> 0:10:12.800 him the story that ROBERTA made up that his daddy 0:10:12.840 --> 0:10:16.920 had been touching him and doing things to him. Basically, 0:10:17.840 --> 0:10:22.320 let's call it what it was, brainwashing and indoctrinating this 0:10:22.480 --> 0:10:27.240 poor little child with all of these horrible lies about 0:10:27.280 --> 0:10:28.760 anal and oral sex. 0:10:29.120 --> 0:10:32.520 There absolutely wasn't doctor nation that was going on. And 0:10:33.040 --> 0:10:36.080 the whole time that this play therapy, it wasn't just 0:10:36.360 --> 0:10:40.240 therapy therapy, it was play therapy. Brian was not allowed 0:10:40.240 --> 0:10:43.400 to see his son. The child was being groomed to 0:10:43.480 --> 0:10:49.640 testify against Brian. There was definitely some leading questions and 0:10:50.080 --> 0:10:53.040 they even went so far as to give him a 0:10:53.240 --> 0:10:57.120 power badge and a policeman ring, and it was suggested 0:10:57.200 --> 0:10:59.960 that this was going to help him tell the truth. 0:11:00.120 --> 0:11:02.760 According to the notes anyway, from the therapy, they even 0:11:02.840 --> 0:11:06.559 gave him bad guy spray to put on the windows. 0:11:07.280 --> 0:11:09.200 I think by the time the trial came around, he 0:11:09.280 --> 0:11:12.320 wasn't even calling his father dad anymore. He called him Brian. 0:11:13.360 --> 0:11:16.800 And the expert witnesses that we used said that that 0:11:16.920 --> 0:11:19.680 was evidence of demonization of the person. 0:11:19.960 --> 0:11:22.440 But none of these notes from the quote unquote play 0:11:22.520 --> 0:11:25.160 therapy and those videotapes that we mentioned earlier, none of 0:11:25.200 --> 0:11:28.440 that ever was brought up in the trial. The judge 0:11:28.440 --> 0:11:31.360 didn't know about them, the jury never heard about them. 0:11:31.880 --> 0:11:33.960 Why in the world is that. 0:11:34.240 --> 0:11:38.000 The public defender that handled Brand's case didn't obtain those notes. 0:11:38.440 --> 0:11:41.800 He did not even put the bare minimum of effort, 0:11:41.840 --> 0:11:43.040 no subpoena, no nothing. 0:11:43.440 --> 0:11:44.959 And later on we'll hear the story of how you 0:11:45.040 --> 0:11:47.520 dug up all of these records. So let's get back 0:11:47.559 --> 0:11:49.959 to the initial proceedings. On October twenty nine, two thousand 0:11:49.960 --> 0:11:51.560 and one, you were indicted by a grand jury on 0:11:51.600 --> 0:11:55.640 two counts of child molestation Class A oral sorodomy, which 0:11:55.679 --> 0:11:57.920 at the time was the highest level felony short of 0:11:58.000 --> 0:12:02.360 murder and Class C, which is finally you were arrested, 0:12:02.520 --> 0:12:04.800 then let out on a five thousand dollars bond, and 0:12:04.840 --> 0:12:07.560 a public defender, Brian May was assigned to represent you 0:12:07.600 --> 0:12:08.080 at trial. 0:12:08.200 --> 0:12:11.080 Well, Judy and I we tried getting a hold of 0:12:11.160 --> 0:12:13.920 Brian May to set up meetings so that I could 0:12:14.000 --> 0:12:16.600 get with him, you know, and forty one times I 0:12:16.679 --> 0:12:20.680 called him and never got an answer, never got a reply. 0:12:21.040 --> 0:12:23.920 Finally I was allowed a visit with him when I 0:12:23.960 --> 0:12:26.680 went in with all these notes, but everything that I 0:12:26.880 --> 0:12:30.439 had on my notes, he was just blown it away. 0:12:30.640 --> 0:12:33.920 You know, that don't matter, That doesn't matter, This doesn't matter. 0:12:34.280 --> 0:12:35.920 As I know, that's all that he had to go 0:12:36.000 --> 0:12:39.200 on in my case was my notes. I only met 0:12:39.240 --> 0:12:42.640 with him, I believe, two times before the trial. 0:12:42.920 --> 0:12:45.040 And we should also mention that your lawyer from the 0:12:45.040 --> 0:12:49.160 Cussy dispute, Greg Blandford, had continually offered to help Brian 0:12:49.200 --> 0:12:53.080 May with these criminal charges. He was, of course intimately 0:12:53.080 --> 0:12:56.720 acquainted with your case and well aware of Bird's mindset, 0:12:57.240 --> 0:13:01.040 but apparently his offer was ignored. All started in January 0:13:01.120 --> 0:13:03.400 two thousand and three at Saint Joseph County Superior Court, 0:13:03.440 --> 0:13:06.680 and again Brian was being tried on two felony counts 0:13:06.720 --> 0:13:09.240 of sexual assault of his own son, who by now 0:13:09.280 --> 0:13:10.120 is six years old. 0:13:10.480 --> 0:13:15.240 So the state presented evidence from Linda Taylor, who was 0:13:15.280 --> 0:13:20.280 the second play therapist. They presented evidence from the mother, 0:13:21.000 --> 0:13:25.320 the Casey Center lady, but not the videos. The videos 0:13:25.320 --> 0:13:28.520 would have actually been helpful to Brian. I think I 0:13:28.559 --> 0:13:32.040 don't believe his public defender ever even looked at the videos, 0:13:32.320 --> 0:13:35.920 because I had to obtain those on my own. And 0:13:36.000 --> 0:13:39.240 the public defender not only did he not investigate the case, 0:13:39.320 --> 0:13:43.680 he didn't cross examine the witnesses. I believe Linda Taylor 0:13:43.800 --> 0:13:47.480 was not asked one single question on cross examination, which 0:13:47.600 --> 0:13:48.959 just blows my mind. 0:13:49.120 --> 0:13:52.240 Yeah, this defense attorney, Brian May, he did no discovery 0:13:52.440 --> 0:13:56.360 and now he's not cross examining. Was he just unable 0:13:56.400 --> 0:13:59.840 to handle his caseload or was he, like maybe on 0:14:00.080 --> 0:14:04.880 the prosecution's payroll. I mean, was this guy doing anything 0:14:05.600 --> 0:14:07.120 at all to help you at trial? 0:14:07.480 --> 0:14:12.480 Well, my trial was a three day trial and he 0:14:12.559 --> 0:14:17.559 fell asleep sitting next to me during the trial three times, 0:14:18.440 --> 0:14:21.360 and one of the times the judge called him out 0:14:21.400 --> 0:14:26.320 on it. He walked him up and told him, can 0:14:26.400 --> 0:14:29.880 we have you being attentive? Man? It says pretty much 0:14:29.880 --> 0:14:31.120 everything that he did for me. 0:14:32.320 --> 0:14:35.840 Jesus. Okay, so you did get up there to defend yourself. 0:14:36.360 --> 0:14:37.080 How did that go? 0:14:37.760 --> 0:14:40.400 Brian may never asked me if I was even guilty 0:14:40.520 --> 0:14:41.840 or innocent, if. 0:14:41.680 --> 0:14:43.920 Your theory is innocence, which in this case that was 0:14:43.960 --> 0:14:47.200 always the theory. Brian didn't do this. If you put 0:14:47.200 --> 0:14:50.560 your clan on the stand under those circumstances, you absolutely 0:14:50.640 --> 0:14:53.440 have to ask them whether they did it or not, 0:14:53.720 --> 0:14:55.920 because if you don't ask the question, then you're not 0:14:55.960 --> 0:14:58.520 only planning a red flag in the minds of the jurors, 0:14:58.840 --> 0:15:01.400 but you're also planning a red flag in the mind 0:15:01.400 --> 0:15:03.320 of the Court of Appeals if it ever gets to 0:15:03.360 --> 0:15:06.000 that phase, which of course it did, because the Court 0:15:06.000 --> 0:15:09.200 of Appeals may make the erroneous presumption in this case 0:15:09.440 --> 0:15:12.240 that the reason the attorney didn't ask the question is 0:15:12.280 --> 0:15:15.480 because the attorney may have known otherwise and didn't want 0:15:15.520 --> 0:15:19.480 to commit an ethical violation by eliciting perjury. 0:15:19.920 --> 0:15:22.920 So I had to pipe up and say I didn't 0:15:22.960 --> 0:15:25.760 do this. You know, I love my son, I did 0:15:25.760 --> 0:15:26.560 not do this. 0:15:26.760 --> 0:15:30.000 To put this public defender in the same category of 0:15:30.000 --> 0:15:32.400 ineffective council that we've covered on this show would be 0:15:32.520 --> 0:15:37.280 unfair to your garden variety in effective council. So there 0:15:37.320 --> 0:15:41.000 you were on your own against ROBERTA and the state 0:15:41.240 --> 0:15:45.600 with their almost unchecked power. They had child psychology professionals, 0:15:45.640 --> 0:15:49.600 an allegedly grieving mother, and the testimony of a six 0:15:49.680 --> 0:15:53.280 year old boy who had been coached and coerced over 0:15:53.280 --> 0:15:56.680 the course of three years to repeat these horrific lies 0:15:57.560 --> 0:15:58.840 about his own father. 0:16:00.160 --> 0:16:03.840 Whenever a charge like this is brought before a jury, 0:16:04.000 --> 0:16:06.680 they're disgusted by the charge, and I think that they 0:16:06.720 --> 0:16:10.920 will err on the side of believing the child. I 0:16:10.960 --> 0:16:14.600 think had they been given the actual evidence that was available, 0:16:14.640 --> 0:16:17.760 what wasn't used, and had the state's witness has been 0:16:17.800 --> 0:16:21.520 exposed to not even vigorous but just to adequate cross examination, 0:16:21.600 --> 0:16:23.480 I think it would have been a totally different outcome 0:16:23.520 --> 0:16:24.000 for Brian. 0:16:24.280 --> 0:16:28.800 But the outcome here was sadly predictable. So on January fifteenth, 0:16:28.840 --> 0:16:30.880 two thousand and three, you were convicted of Class A 0:16:31.040 --> 0:16:35.840 child molestation and subsequently sentenced to forty years in prison. Brian, 0:16:36.120 --> 0:16:39.520 can you take us back to that horrible, horrible moment 0:16:39.560 --> 0:16:40.960 when they came back with the verdict. 0:16:41.160 --> 0:16:45.760 Oh yeah, that's the moment you'd never forget My Then 0:16:46.240 --> 0:16:49.400 Judy and I had gotten married. I heard Judy in 0:16:49.480 --> 0:16:54.760 the courtroom scream out. I mean, it's a numbing feeling that, 0:16:55.120 --> 0:16:58.360 you know, if you're guilty, you deserve it. If you're innocent, 0:16:58.640 --> 0:17:00.440 why the hell would you deserve something like that. 0:17:14.520 --> 0:17:17.280 The Pacers Foundation is a proud supporter of this episode 0:17:17.280 --> 0:17:20.480 of Rawful Conviction and of the Last Mile organization, which 0:17:20.520 --> 0:17:24.720 provides business and tech training to help incarcerated individuals successfully 0:17:24.760 --> 0:17:28.119 and permanently re enter the workforce. The Pacers Foundation is 0:17:28.160 --> 0:17:31.800 committed to improving the lives of Hoosiers across Indiana, supporting 0:17:31.920 --> 0:17:35.920 organizations that are dedicated primarily to helping young people and students. 0:17:36.240 --> 0:17:38.760 For more information on the work of the Pacers Foundation 0:17:39.000 --> 0:17:42.560 or the Last Mile program, visit Pacersfoundation dot org or 0:17:42.560 --> 0:17:43.920 the Lastmile dot org. 0:17:51.960 --> 0:17:54.280 All you know was you're supposed to grow up to 0:17:54.400 --> 0:17:57.360 be a good man. You're supposed to have a good 0:17:57.480 --> 0:18:00.359 job and take care of your family. You know, you 0:18:00.359 --> 0:18:03.800 don't pay attention to the legal system. You don't have 0:18:03.880 --> 0:18:05.920 any need to really know it. You know, as long 0:18:05.960 --> 0:18:09.359 as you abide by the laws that you've been taught 0:18:09.400 --> 0:18:13.639 all your life, but you are also taught that you know, 0:18:13.920 --> 0:18:16.960 prison's a bad place. Now you have to face this. 0:18:17.119 --> 0:18:19.560 Now you're going into something you have no idea about. 0:18:19.840 --> 0:18:21.760 I mean not to get into this, but we all 0:18:21.800 --> 0:18:24.200 know how dangerous that place is for someone who's been 0:18:24.240 --> 0:18:28.159 convicted of what you were, you know, framed for what 0:18:28.400 --> 0:18:30.119 happened when you first got to prison. 0:18:31.160 --> 0:18:35.600 I got put into what's called APOD, which is where 0:18:35.640 --> 0:18:40.359 the high profile and the sex charges go, kind of 0:18:40.400 --> 0:18:44.680 like protective custody. I never went outside for I think 0:18:44.680 --> 0:18:47.639 it was nine months. I have been a professional person 0:18:47.680 --> 0:18:52.760 all my life, never had a reason to know what 0:18:52.920 --> 0:18:57.040 it's like behind the walls. But the Lord seeing a 0:18:57.119 --> 0:18:59.960 purpose for me to be taken out of that life 0:19:00.080 --> 0:19:02.440 and put into the other one. And I believe he 0:19:02.520 --> 0:19:05.280 did have a purpose for me going there. You know. 0:19:05.400 --> 0:19:09.440 I was a part of the PLUS program. 0:19:09.080 --> 0:19:12.000 And PLUS stands for Purposeful Living Units SERVE and it's 0:19:12.000 --> 0:19:14.920 a terrific program. As I'm led to understand. 0:19:14.880 --> 0:19:18.440 It was really a wonderful thing. We won best prison 0:19:18.520 --> 0:19:22.480 program through the world many years. I was the clerk. 0:19:22.840 --> 0:19:25.200 You had to go to these classes, but me as 0:19:25.200 --> 0:19:28.760 the clerk. I processed all the papers and passed out 0:19:28.800 --> 0:19:32.000 people's graded papers, you know, stuck it under their doors, 0:19:32.000 --> 0:19:34.119 handed it to him. Whatever. I got to be in 0:19:34.200 --> 0:19:37.080 the classes, I got to set up the power points 0:19:37.080 --> 0:19:39.760 for them. It's like I was the Plus program. 0:19:40.040 --> 0:19:42.879 But meanwhile, all this time you're working on appealing your conviction. 0:19:42.960 --> 0:19:45.399 Your first appeal was denied and the conviction was upheld. 0:19:45.440 --> 0:19:47.600 And then in two thousand and four, still working on 0:19:47.640 --> 0:19:50.040 your own, I might you file a post conviction petition 0:19:50.119 --> 0:19:52.400 for a new trial based on your claim of ineffective 0:19:52.400 --> 0:19:55.640 assistance of counsel. That that got shot down too, right? 0:19:55.960 --> 0:19:59.280 Oh yeah, you never get any kind of traction when 0:19:59.320 --> 0:20:03.119 you when you do it yourself basically. And then public 0:20:03.119 --> 0:20:07.000 defenders they just filed the paper and it got shot down. 0:20:07.080 --> 0:20:08.600 I mean, it's like a skeet shoot. 0:20:08.800 --> 0:20:11.760 But then I believe your family had gotten the money 0:20:11.800 --> 0:20:14.080 together to hire an attorney, And in two thousand and seven, 0:20:14.160 --> 0:20:16.479 that's when you came onto the case, Cynthia. Right, So 0:20:17.000 --> 0:20:19.600 when you first went and met with Brian at the prisoner, 0:20:19.680 --> 0:20:22.399 heard his story, what was your initial impression. Did you 0:20:22.440 --> 0:20:24.320 think he had a chance. 0:20:24.440 --> 0:20:25.960 It seemed like it was going to be a tough 0:20:25.960 --> 0:20:29.240 case to beat, just because of the nature of the allegations. 0:20:29.520 --> 0:20:33.280 But Brian seemed sincere and his family was firmly in 0:20:33.320 --> 0:20:37.879 his corner and they strongly believed in his innocence. I 0:20:37.880 --> 0:20:40.800 think by then he and Judy were divorced and she 0:20:40.920 --> 0:20:44.879 still believed in his innocence. Spend my experience in representing 0:20:44.960 --> 0:20:48.080 criminal defendants that when the exes will stand behind you, 0:20:48.440 --> 0:20:51.960 it's usually a pretty strong indication of character because generally 0:20:52.000 --> 0:20:54.080 the ex wives and the ex girlfriends are the ones 0:20:54.119 --> 0:20:56.480 who know where all the dirty laundry is. And if 0:20:56.480 --> 0:20:59.240 they're still believing in this person, then that gives me 0:20:59.280 --> 0:21:01.560 a pretty good feeling that this is this is somebody 0:21:01.640 --> 0:21:02.720 I can I can help. 0:21:02.920 --> 0:21:05.320 And as I understand it, there was a very important 0:21:05.320 --> 0:21:08.800 person in your life who has since unfortunately passed away, 0:21:08.840 --> 0:21:11.679 but who really helped you a lot with this case. 0:21:12.240 --> 0:21:16.440 My mentor professor, Henry Carlson, who was my criminal law 0:21:16.440 --> 0:21:20.920 and criminal procedure professor in law school. He read the transcripts. 0:21:20.960 --> 0:21:22.760 He said, your client is innocent. I can tell by 0:21:22.800 --> 0:21:26.040 reading the transcripts. The attorney did a terrible job. We 0:21:26.080 --> 0:21:29.280 need an expert witness, and I think you should contact 0:21:29.400 --> 0:21:30.119 Richard Lawler. 0:21:30.400 --> 0:21:32.760 And Richard Lawla was an attorney and also a trained 0:21:32.800 --> 0:21:35.320 psychologist who did agree to be your expert witness. 0:21:35.720 --> 0:21:41.720 So myself, Professor Carlson, and doctor Lawler made a determination 0:21:41.880 --> 0:21:44.040 that what was going to be important was to obtain 0:21:44.080 --> 0:21:49.640 the play therapy records. So I sent my subpoenas and 0:21:49.680 --> 0:21:53.520 nothing turned up from these subpoenas. They told me that 0:21:54.040 --> 0:21:57.440 we moved and these play therapy records got less in 0:21:57.520 --> 0:22:01.320 the move. Sorry, So I did the best I could 0:22:01.720 --> 0:22:04.000 with what I had and we got the case worked 0:22:04.040 --> 0:22:05.320 up and ready to go to trial. 0:22:05.960 --> 0:22:08.480 But you did end up getting those records eventually, and 0:22:08.600 --> 0:22:11.320 how you got them is really like a comedy of errors, 0:22:11.359 --> 0:22:12.920 all starting with a snowstorm. 0:22:13.119 --> 0:22:16.600 So the evidential you're hearing took place on December tenth, 0:22:16.640 --> 0:22:20.240