#343 Jason Flom with Brian Neirynck

one week before everybody else. So get in the know one week early with an Apple Plus subscription. Brian Derrick and Roberta Smedley met in Plymouth, Indiana in nineteen eighty four, and before long they were inseparable. Two years later they had a son, Michael Scott. By the time the boy was almost three years old, the relationship had con sour. Roberta kicked Brian out of the house, got a restraining order, and cleaned out his bank account. Eventually, a bitter custody

battle ensued. In June of two thousand, after the boy had returned from a visit with Brian, Roberta reported to police that Michael Scott had told her that he had been molested by his father. The Department of Child Services investigated the allegations. Brian's visitation rights were suspended and Michael Scott was sent to play therapy. Three years later, at trial,

Roberta and the therapist repeated the accusations against Brian. Michael Scott, now six years old, testified to say that his father had in fact done what his mother had alleged. Brian's only defense was to say that he loved his son and would never heard of against the testimony of an impressionable child. Three years worth of notes and videotape therapy sessions probably helped nothing of interest to the jury. But

this is wrongful conviction. Welcome back to ronfal Conviction. Today's story comes to us from Saint Joseph's County, Indiana, and it's about one of the most horrific things that anyone can imagine as a parent. And I'm speaking as a parent, but this would be horrific to any normal human person. I'm talking about the crime of child molestation. And the

thing is it never happened. It was a story cooked up as ammunition for a custody battle, and unfortunately, an innocent child was used to bolster the charge by being groomed to testify against his own father. That's the real child abuse. By the way, our guest today is Brian Rick. Brian, welcome to ROLFU conviction. Thank you. And also with us is Cynthia Carter, Indiana clminal defense attorney and self described recovering public defender who was Brian's post conviction attorney. So

Cynthia welcome, Thank you. Jason. Really great to be here. Brian. Let's start with you. Where did you grow up? Right outside of South ben Indiana, little town called Walkerton. It was just a small town. My family could have been considered lower middle class, good family structure, mom, dad, brother, And then around nineteen eighty four you started seeing Roberta Smedley. Where did you two meet at the Blueberry Festival in Plymouth, Indiana. We were together I think six years overall. For the

most part, it was always good. And a couple of years later you found out that Roberta was pregnant. Were you excited about becoming a father? Yeah, it was great. I was looking forward to being a dad. You know, it's every boy's dream. I assume every boy's dream it was mine through the pregnancy. I went to every one of the doctor meetings, birthing class, and I was there when he was born. It was the greatest thing ever

in my life. So now you, Roberta, and your son Michael Scott are a family, and for all intents and purposes, it sounds like life was going pretty well for a while, right. I mean, you had a steady job and we're building a life together. I was working in a machine shop as a machinist assembler and going to work every day, ten to twelve hour days and coming home every night to my family. Michael Scott and I had a great relationship. I mean I was always involved in his life. He

was the center of my life. And one day I come home from work and she tells me you've got to get out. And I said, what do you mean I got to get out? She says, well, I got a restraining order against you and you've got to move out. This just came out of the blue, without any warning at all. Do you have any idea what that was all about. She just always got whatever she wanted, and you know, she wanted a child and she got it

and then got rid of me. So I ended up going out to my dad's and staying with him until I finally got an apartment. And when my ex girlfriend came back into my life and his life, and she just adored Michael Scott. Yeah, your girlfrien, Judy. So Michael Scott was around three years old at this point and living with his mother full time. But you and Roberta had worked out some kind of visitation agreement, right. I was there every Wednesday and every other weekend. I had

him and we did everything we could together. We'd fill the car up with balloons. I had a four door of Crown Victoria and we'd go down the road and roll the windows down and the balloons would fly around and fly out. It was wonderful. Michael Scott loved being with me. I bought a house Judy and I moved into it. It was a nice two story house. Michael

Scott would come over. He had his own bedroom. He had a walk in closet that we were sitting there with markers and ride all over the walls, threw the ball up and down the steps, and like I said, I thought we had it going on. It was more stable than his house, you know. He would always say

mom's going out drinking or mom was drunk. So around this time when you decide to hire a lawyer, Greg Blandford and push for full custody of your son, I wanted to have him with me, and I thought it was better for him to be with Judy and I, you know, I felt it was more safe. At one point, Roberta had sent my mom a picture of Michael Scott and it was a picture of Michael Scott and his little buddy Max, and they were both drinking a beer.

So I presented that to the court. I think that's what flipped her switch to make up all these lies. And in June two thousand and that's when you find out just what kind of lies she'd be willing to make up. And I come home from work one day and Judy meets me at the door and she says, get in the house. She says, there's a warrant for your arrest. And I said for what She says, They

said that you did something to Michael Scott. Right. The police report was June second, two thousand and the police talked to Roberta and she reported that the child had reported that Brian was doing things to him and that he didn't like his father's pepe, And so I called my family attorney, the one that was worked with me to get custody, and he says, they're allegating that you did something to Michael Scott sexually. And I said, that's impossible, Greg,

it didn't happen. He says, well, this is what's happening. These are really serious allegations, of course, but initially there was a wide gap between what Roberta alleged that Michael Scott had said and what Michael Scott was actually saying. So then I find out that what he's saying is doggie, Dad and grass. That's all he was saying. I mean, it was nothing. Everybody's just kind of laughing about this because they know Brian. They know this isn't possible. This

was all craziness. When these kinds of allegations are level, Department of Children Services or DCS must get involved by law. And there was a physical examination done too, and they didn't notice any injury to the child, just some redness and there was no internal examination done, but there were no injuries to Brian's son. Michael Scott was interviewed by a therapist at a child abuse investigation center called the Casey Center. They interviewed Michael Scott and he says, my

dad don't do nothing to me. I mean, this was on video and they're trying to get him to say something. Is not saying anything. So these sessions were videotaped, but Brian's attorney never even reviewed them or presented to the court during his trial. But this is what we know now, So it sounds like the allegations were not being made by the alleged victim, Michael Scott, but rather just coming from the mind of Roberta. Nevertheless, Brian's visitation rights were

suspended and he wasn't allowed to see his son. Then in October two thousand, they stopped the investigation because thing had really come out of it. But it sounds like Roberta was still not anywhere nearer letting up with her story. It's interesting because the allegations actually evolved over time. When the mother first spoke to the police, she said she was wiping the child after he went to the bathroom and the child supposedly said, don't put your finger there,

that hurts. And then the things that Brian mentioned about Daddy dog grass. So that's what led to the initial physical examination. Well, then come November of two thousand, the allegation changed. Then the allegation was that he put his pep in my mouth. So that was a totally different allegation than what was made in the first place. That went on for over a year, just those allegations, and then the other warrant came up that says, oh, we have enough. They want to grand jury, we have enough

to try him criminal. During that year, unbeknownst to you, Michael Scott was being sent to this place called Holy Cross Counseling Center for play therapy once a week, where they were basically feeding him the story that ROBERTA made up that his daddy had been touching him and doing things to him. Basically, let's call it what it was, brainwashing and indoctrinating this poor little child with all of these horrible lies about anal and oral sex. There absolutely

wasn't doctor nation that was going on. And the whole time that this play therapy, it wasn't just therapy therapy, it was play therapy. Brian was not allowed to see his son. The child was being groomed to testify against Brian. There was definitely some leading questions, and they even went so far as to give him a power badge and a policeman ring, and it was suggested that this was going to help him tell the truth. According to the notes anyway, from the therapy, they even gave him bad

guy spray to put on the windows. I think by the time the trial came around, he wasn't even calling his father dad anymore. You called him Brian, and the expert witnesses that we used said that that was evidence of demonization of the person. But none of these notes from the quote unquote play therapy and those videotapes that we mentioned earlier, none of that ever was brought up in the trial. The judge didn't know about them, the

jury never heard about them. Why in the world is that the public defender that handled Brand's case didn't obtain those notes. He did not even put the bare minimum of effort, no subpoena, no nothing. And later on we'll hear the story of how you dug up all of

these records. So let's get back to initial proceedings. On October twenty nine, two thousand and one, you were indicted by a grand jury on two counts of child molestation Class a oral sodomy, which at the time was the highest level felony short of murder and Class C, which is finally you're arrested, then let out on a five thousand dollar bond, and a public defender. Brian May was designed to represent you at trial. Well, Judy and I we tried getting ahold of Brian May to set up

meetings so that I could get with him. You know, in forty one times I called him and never got an answer, never got a reply. Finally I was allowed a visit with him, but I went in with all these notes, but everything that I had on my notes, he was just blown it away. No, that don't matter, that doesn't matter, This doesn't matter far as I know, That's all that he had to go on in my case was my notes. I only met with him, I believe,

two times before the trial. And we should also mention that your lawyer from the Custos dispute, Greg Blamford, had continually offered to help Brian May with these criminal charges. He was, of course intimately acquainted with your case and well aware of a bird's mindset, but apparently his offer

was ignored. The I'll started in January two thousand and three at Saint Joseph County Superior Court, and again Brian was being tried on two felony counts of sexual assault of his own son, who by now six years old. So the state presented evidence from Linda Taylor, who was the second play therapist. They presented evidence from the mother, the Casey Center lady, but not the videos. The videos

would have actually been helpful to Brian. I think I don't believe his public defender ever even looked at the videos, because I had to obtain those on my own. And the public defender not only did he not investigate the case, he didn't cross examine the witnesses. I believe Linda Taylor was not asked one single question on cross examination, which just blows my mind. Yeah, this defense attorney, Brian May, he did no discovery and now he's not cross examining.

Was he just unable to handle his caseload or was he like maybe the prosecution's payroll. I mean, was this guy doing anything at all to help you a trial? Well, my trial was a three day trial and he fell asleep sitting next to me during the trial three times, and one of the times the judge called him out on it. He woke him up and told him, can we have you being attentive? Man? It says pretty much everything that he did for me. Jesus. Okay, so you

did get up there to defend yourself. How did that go? Brian may never ask me if I was even guilty or innocent, if your theory is innocence, which in this case that was always the theory. Brian didn't do this.

If you put your clan on the stand under those circumstances, you absolutely have to ask them whether they did it or not, because if you don't ask the question, then you're not only planning a red flag in the minds of the jurors, but you're also planning a red flag in the mind of the Court of Appeals if it ever gets to that phase, which of course it did, because the Court of Appeals may make the erroneous presumption in this case that the reason the attorney didn't ask

the question is because the attorney may have known otherwise and didn't want to commit an ethical violation by eliciting perjury. So I had to pipe up and say I didn't do this, you know, I love my son, I did not do this to put this public defender in the same category of ineffective council that we've covered on this show would be unfair to your garden variety in effective counsel. So there you were on your own against ROBERTA and

the state with their almost unchecked power. They had child psychology professionals, an allegedly grieving mother, and the testimony of a six year old boy who had been coached and coerced over the course of three years to repeat these horrific lies about his own father. I think whenever a charge like this is brought before a jury, they're disgusted by the charge, and I think that they will air

on the side of believing the child. I think had they been given the actual evidence that was available, what wasn't used, and had the state's witness has been exposed to not even vigorous but just adequate cross examination, I think it would have been a totally different outcome for Brian. But the outcome here was sadly predictable. So on January fifteenth, two thousand and three, you were convicted of Class A child molestation and subsequently sinced to forty years in prison.

And Brian, can you take us back to that horrible, horrible moment when they came back with the verdict. Oh yeah, that's a moment you'd never forget. My Then Judy and I had gotten married. I heard Judy in the courtroom scream out. I mean, it's a numbing feeling that you know, if you're guilty, you deserve it. If you're innocent, why

the hell would you deserve something like that. The Pacers Foundation is a proud supporter of this episode of Rawful Conviction the end of the Last Mile organization, which provides business and tech training to help incarcerated individuals successfully and permanently re enter the workforce. The Pacers Foundation is committed to improving the lives of Hoosiers across Indiana, supporting organizations that are dedicated primarily to helping young people and students.

For more information on the work of the Pacers Foundation or the Last Mile Program, visit Pacers Foundation dot org or the Last Mile dot org. All you know is you're supposed to grow up to be a good man. You're supposed to have a good job and take care of your family. You know, you don't pay attention to the legal system. You don't have any need to really know it. You know, as long as you abide by

the laws that you've been taught all your life. But you're also taught that you know, prison's a bad place. Now you have to face this. Now you're going into something you have no idea about. I mean not to get into this, but we all know how dangerous that place is for someone who's been convicted of what you were, you know, framed for what happened when you first got to prison. I got put into what's called APOD, which is where the high profile and the sex charges go,

kind of like protective custody. I never went outside for I think it was nine months. I have been a professional person all my life, never had a reason to know what it's like behind the walls. But the Lord seeing a purpose for me to be taken out of that life and put into the other one. And I believe he did have a purpose for me going there. You know. I was a part of the PLUS program, and PLUS stands for Purposeful Living Units SERVE and it's a terrific program. As I'm led to understand, it was

really a wonderful thing. We won best prison program through the world many years. I was the clerk. You had to go to these classes. But me, as the clerk, I processed all the papers and passed out people's graded papers, you know, stuck it under their doors, handed it to him. Whatever I got to be in the classes, I got to set up the power points for him. It's like I was the Plus program. But meanwhile, all this time

you're working on appealing your conviction. Your first appeal was denied and the conviction was upheld, and then in two thousand and four, still working on your own I might add, you file a post conviction petition for a new trial based on your claim of ineffective assistance of counsel. That that got shot down too, right, Oh yeah, you never get any kind of attraction when you you do it yourself basically, And then public defenders they just filed the

paper and it got shot down. I mean, it's like a skeet shoot. But then I believe your family had gotten the money together to hire an attorney, and in two thousand and seven, that's when you came onto the case, Cynthia. Right, so when you first went and met with Brian at the prisoner, heard his story, what was your initial impression. Did you think he had a chance it seemed like it was going to be a tough case to beat,

just because of the nature of the allegations. But Brian seemed sincere and his family was firmly in his corner, and they strongly believed in his innocence. I think by then he and Judy were divorced and she still believed in his innocence. It's been my experience in representing criminal defendits that when the exes will stand behind you, it's usually a pretty strong indication of character because generally the ex wives and the ex girlfriends are the ones who

know where all the dirty laundry is. And if they're still believing in this person, then that gives me a pretty good feeling that this is somebody I can help. And as I understand it, there was a very important person in your life who has since unfortunately passed away, but who really helped you a lot with this case. My mentor professor, Henry Carlson, who was my criminal law and criminal procedure professor in law school. He read the transcripts. He said, your client is innocent. I can tell by

reading the transcripts. The attorney did a terrible job. We need an expert witness, and I think you should contact Richard Lawler. And Richard Lawler was an attorney and also trained psychologists who did agree to be your expert witness. So myself, Professor Carlson, and doctor Lawler made a determination that what was going to be important was to obtain the play therapy records. So I sent my subpoenas and

nothing turned up from these subpoenas. They told me that we moved and these play therapy records got less than the move. Sorry, So I did the best I could with what I had, and we got the case worked up and ready to go to trial. But you did end up getting those records eventually, and how you got them, it's really like a comedy of errors, all starting with a snowstorm. So the evidentially you're hearing took place on the summer tenth, twenty ten, which I believe was a Friday,

very snowy day in South Bend, Indiana. We went up the night before so we could serve the subpoena. Again, I sent my clerk. He goes to their office and again they say, we don't have these notes. We already told you we don't have them. So he's got he's going to leave and come back to the courthouse, and he's reaching in his pockets and he realizes he can't find the car keys, and he thinks that he's locked

the car keys in the car. He also can't seem to find his cell phone, so he flags down a snowplow, and the snowplow flags down a police officer. So they're out there trying to slim Jim the car to get into the car. And I think what happened is the people inside the plate therapy place look out the window and saw the police and thought that we were serving process on our subpoena. The young man that I had hired went back inside to see if he could use their phone, and lo and behold, they coughed up a

stack of notes. It's the day of your evidentiary hearing, and everything's on the line. Now you're going up in front of Judge Jerome Freeze and your expert witness, doctor Richard Lawler, had just an hour or so to go over those plate therapy records right before you got up to testify. And essentially what doctor Lawler's testimony was able to illuminate is the concept of confabulation. The notes basically were the evidence that showed that the child was groomed

to testify against Bryan. Was definitely some leading questions. The therapist would refer to Brian as Brian rather than the dad, and at the beginning of the testimony, when the prosecutor asked, Michael, do you have a dad that I did but now I don't, the therapists introduced the topic of secrets, the idea of giving the child a power badge to where to help tell the truth. They also gave him a

policeman ring to give him power. There was at one point there was something about his mom was threatening to take his cat away if he didn't say what they wanted him to say. One of the handwritten notes said that Michael Scott is finally saying what we want him to say. And because no one obtained the notes prior to trial, there was no cross there was no testimony whatsoever about this. I don't even know if the prosecution

saw these notes. And while the therapist did get him to say what they wanted through this conditioning and what sounds like punitive measures, Michael Scott also said some things that didn't really track with the allegations. In fact, didn't even make any sense. One of the things that the little boy said is that when he supposedly had this encounter with the oral sex, that it tasted like green yellow.

Obviously not true. Another thing that we noticed was that when he drew a picture, which was supposedly a picture of that father's penis, the hair was on the shaft. Obviously untrue. But these are things that happen when there is a confabulation, When the story is planted in a child's mind, Eventually the child comes to believe that it's real, especially with a very young child, and they fill in details to supplement what they believed to be true. But

the details are wrong. So you've brought in this expert witness and all this powerful new evidence, along with the deposition from your mentor Henry Carlson, all of which forms a very powerful argument for not only ineffective assistance of counsel, but also witness tampering and manipulation. And on top of that, you had one more witness who was going to be

absolutely crucial to the case. The initial therapist that did the play therapy was Kathy Steimon, And the one other thing that was made clear to us whenever we did obtain the notes is that somebody else had signed her name and put their initials after it, and she had moved to Michigan. She did not want to drive to South Bend to do the trial. She ended up testifying by telephone on December the tenth, twenty, which was the day you concluded your case, but Judge Freeze didn't give

you a ruling that day. He told you to come back a month later to make your closing arguments, and then, to your shock and devastation, Judge Freeze denied the post conviction relief. But I mean, he's here with us today,

right now, right, So then what happened. Brian and I were actually going to appeal the decision and had actually, I think even gone so far as to file the notice of appeal, but then thee had second thoughts and had his staff called me and asked if I wanted to reopen the evidence because he said he didn't think it was quite fair that we had been given the notes in the middle of the trial, and also it was difficult to hear the witness on the phone and it would be better if she could come in person.

So we did that in February. Then the judge took it under advisement. Judge Freeze wrote his own findings, and he did that in May, And that was in May of twenty eleven, just a few months after denying your PCR request. Judge Freeze then issued his final ruling, granting post conviction relief and basically overturning your conviction. That must have been an unbelievable day for you, Brian. Well, it ain't like, okay, it's overturned and we opened the doors

and let you out. It don't work that way. I think I was in there for it was either three weeks or a month deemed an innocent man. Now, you don't tell nobody that when you're in prison, because they'll do what's called jack your time. They will cause problems with you so that you get in trouble and you don't get to leave on time. So here I am busting at the seams, and only my closest friends in prison did I allow to know. I'm getting out and tell the morning that they packed me out and I'm

walking out and shaking hands with guys. Tell him it's nice to meet you. I got my case overturned. I'm going home. So I get up there and finally get to go before the judge and he releases me, and one of the happiest days of my life. When you walk out of that prison, your depths. You don't realize how far you can see. And when you walk out a free man, everything you're able to not ask the guard if I can, I hug my mom and now she's standing right there waiting for you, along with her posse.

My mom grew up best friends with five other women. There was six of them that were all good friends. They were all there. They had a motel room and the banquet room set up so we could have a coming out party. It was great. You eventually fouled a federal civil rights suit against Saint Joseph County. But the truth is there's nothing. There's no amount that could ever repay you for what you went through. No put a price on your life for a year. You can't. There's

no price. I mean, what are you going to do go back and say, well, his wages for the year was this, So that's the value of his life. And where I was your life in danger every day, So how do you put a price on that? Our listeners, is there anything that they can do to help, or anything that you need. Well, the biggest thing that I could ask for is just prayer. You know people want to say money, money, money, Well, somebody could lay one

hundred dollars bill in your hand. Yeah that's worth one hundred dollars, But you can't even put a price on a prayer and prayers what got me through. There are so many people praying for me, and nobody let God forget about Brian. So what are you doing now? Have you been able to pick up some of the pieces. I went back to being a deesel mechanic. I just try to enjoy every day. You learn to appreciate walking outside and smell in the air. I even like flowers nowadays.

I never never thought anything about florful flowers. Are you sure to appreciate them? Now? Now we're going to turn to my favorite part of the show, which we call closing arguments. I'm just gonna turn off my mic, kick back in my chair and listen as you guys say whatever else you feel is left to be said. The floor is yours, So thank you again for being here India. Why don't you start us off? And then Brian, you

take us out. What I would say, more so than anything, is just how valuable the Constitution is in protecting people's freedoms. And if a person's constitutional rights have been violated and they don't get a fair trial trial, judges should not be afraid to overturn convictions, Prosecutors should not be afraid to revisit wrongful convictions because freedom is too precious and too valuable for someone to have to sit in prison

for something that they didn't do. And in negotiating with prosecutors and pleading cases to judges, you know, sometimes the best thing that you can do is asked for mercy and grace. And even for people that are in prison for something they actually did, sometimes the senses are too long. But for people to be in prison for something that they didn't do, that's just evil. Brian is a good

example of this. And I just hope that you know, for people out there that are doing this kind of work, that they don't lose heart, and that judges who are presented with cases like this will have the courage to do the right thing. As strange as it sounds, I feel like I'm pretty blessed. The Lord showed me a lot and had me do a lot of what I think is good being there in prison with the Plus program. It sounds crazy, but I feel like I'm a blessed man.

I'm definitely blessed. I've finally proved my innocence, but I'll never know what it's like to have a son. So I hated that who lives a life lies, but I pray for him every day that God puts angels in his life to lead him and protect him. And the justice system ain't a justice system. It's about as fucked up as it comes. Thank you for listening to Wrongful Conviction Special thanks to our amazing production team Connor Hall, Annie Chelsea, Jeff Clyburne, and Kevin Wardis with research by

Lyla Robinson. The music in this production was supplied by three time OSCAR nominated composer Jay Ralph. Make sure to follow us on Instagram at Rowful Conviction, on Facebook at Wrongful Conviction Podcast, and on Twitter at wrong Conviction, as well as at Lava for Good. On all three platforms, you can also follow on TikTok and Instagram at its Jason Flam. That's It's Jason Flom. Wrongful Conviction is a production of Lava for good podcasts in association a signal company, Number one