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Saturday, June 16, 2012

Ind. Courts - PCR attorney said she owes much credit to Henry Karlson, a law professor and legal scholar, who provided expert testimony in Neirynck's appeal on the standard of care for a reasonable attorney

Quotes from Mary Kate Malone's long, excellent story this week in the South Bend Tribune:

SOUTH BEND -- To the extent possible, Brian Neirynck intends to rebuild his life.

The 46-year-old was released from prison last summer after St. Joseph Superior Court Judge Jerome Frese vacated his 2003 conviction of molesting his toddler son, determining he may not have received a fair trial.

On Friday, the St. Joseph County Prosecutor's office decided to dismiss the case, rather than re-try him.

To Neirynck, his family, and his attorney, the dismissal order marks the end of a case that sent him to prison after an unfair trial.

"It's been a long, hard-fought battle," said Neirynck's attorney, Cynthia Carter.

"Until the case was dismissed, we really didn't know what would happen."

The prosecutor could have chosen to re-try Neirynck on the charge for which he was convicted, class A felony child molesting. Instead, the office determined it would not be able to meet its burden of proof.

Twelve years has passed since the alleged molesting incident, the prosecutor's office said in a statement, and newly discovered information, not presented at his original trial and supporting Neirynck's defense, would be admissible on a re-trial. * * *

Neirynck was convicted of the crime in January 2003 in St. Joseph Superior Court, and sentenced to 30 years in prison. He filed his initial appeal immediately, but the Court of Appeals upheld the conviction in August 2004.

Alleging ineffective counsel at trial, Neirynck then filed a petition for post-conviction relief, but that appeal sat dormant for several years.

It was not until December 2009, after Carter had become Neirynck's new attorney and began filing motions, that his petition for relief began to move forward.

Carter began digging deep into the case and trial records. She eventually obtained notes from the alleged victim's counselor related to her 31 therapy sessions with the boy. The notes, never gathered by Neirynck's court-appointed public defender, Brian May, or his first appellate attorney, showed that the boy may have been coached or conditioned in his testimony, Carter argued.

"Sometimes you just feel like you don't want to give up," Carter recalled this week. ".... and that's what I thought. There were times when I thought about giving up, but we never did."

It eventually paid off.

In March 2011, Judge Frese heard arguments from Carter and the prosecutor's office regarding Neirynck's appeal. Carter argued that Neirynck had ineffective counsel at his trial, citing the never-before-obtained notes, and other shortcomings of May. The state argued otherwise, saying May's performance was part of his trial strategy.

In a rare legal decision, Judge Frese granted Neirynck's appeal, and ordered that he be released from prison. In his 13-page order, the judge outlined the chronology of the case, noting the child custody dispute between Neirynck and the boy's mother that preceded the criminal case, as well as the deficient performance of Neirynck's previous attorneys. * * *

"This conditioning of the state's only direct witness -- a child just turned six, who testified (more than a year) after the charged acts -- constitutes a powerful basis for a defense theory," Frese wrote. "None of this was presented to the jury."

The Attorney General could have appealed Frese's decision, but decided in October not to pursue one.

The St. Joseph County Prosecutor's recent decision to dismiss the case effectively puts it to rest .

[Attorney Cynthia] Carter makes a living working on appeals and post-conviction relief cases.

She said the Neirynck case stands out, because it is one of the very few that was resolved by a trial court, rather than an appeals court.

"I would applaud Judge Frese's courage and wisdom and the decision he made," Carter said. "The whole system isn't perfect, but you have to try, and I would just applaud Judge Frese. I have a great deal of respect for him." * * *

She said she owes much credit to Henry Karlson, a law professor and legal scholar, who provided expert testimony in Neirynck's appeal on the standard of care for a reasonable attorney. The judge cited much of Karlson's statements in arriving at his decision to vacate Neirynck's conviction.

Karlson became gravely ill before the hearing where he was set to testify, and instead gave a deposition beforehand. He had died by the time the hearing took place.

"His dying wish was that an innocent man be set free," Carter said. "And that's what we believed all along."

Posted by Marcia Oddi on June 16, 2012 03:53 PM
Posted to Indiana Courts