Tuesday, November 13, 2018

Court finds Missouri lawyer David Shuler provided ineffective assistance of counsel in child-sex case that had his client, Scott J. Wells, facing five life sentences

David Shuler
A Missouri man was found guilty of child sexual abuse in 2004 and faced a likely punishment of five life sentences, plus 55 years. Legal situations do not get much more dire than that, especially when you consider that the man insisted throughout the process that he was not guilty. Still, the man appeared to have "one foot in the grave" -- as courthouse types like to say -- until something unexpected happened. A second lawyer agreed to take a look at the case, which involved a bench trial, and he found rampant inconsistencies among the testimony of four girls who were complaining witnesses. He also found that the defendant's first lawyer had committed multiple blunders that contributed to the guilty finding.

The second lawyer filed  a motion for a new trial, based on ineffective assistance of counsel. In a stunning development, the judge found evidence presented at the new-trial hearing so disturbing that he overturned his own guilty verdict and ordered a new trial.

The first defense lawyer, the one a court determined to have provided ineffective assistance of counsel, was my brother, Springfield attorney David Shuler. This is the first in a series of posts about a case styled State of Missouri v. Scott J. Wells (No. 31302CF5509). I've sought comment from David Shuler for these reports, but he has not responded. His silence, and certain actions he's taken since the trial, indicate he's not particularly bothered by his dreadful representation of Scott Wells. Perhaps that is more evidence that some individuals check their consciences at the door when they enter law school.

Tried in Greene County, MO, the Wells case provides frightening evidence of the danger that lurks around every bend in our broken "justice system." From child witnesses who have faulty memories or problems with honesty (or both), to overzealous and game-playing prosecutors, to inept lawyers . . . the system can swallow innocent people whole and ruin their lives, while nobody seems to notice.

As for Scott Wells, he's still not out of the legal woods. He filed a legal-malpractice lawsuit against David Shuler, and the case got past the dismissal and summary-judgment stages -- and to the edge of a trial -- when Wells' attorney bailed out on him, and the case was dismissed. I've had enough experience with legal-malpractice cases to know they are difficult to get to trial, much less to win. That Scott Wells v. David Shuler got to the point of formulating jury instructions suggests that Wells had a strong case. That Wells' lawyer would exit when he was on the verge of a victory -- and a 30-40 percent share of what likely would have been a substantial judgment -- smells of fishy, behind-the scenes maneuvering.

Deposition testimony of expert witness Daniel Dodson, a lawyer from Jefferson City, MO, was devastating regarding David Shuler's performance. (Parts 1 and 2 of Dodson's testimony, plus David Shuler's testimony at the new-trial hearing, are embedded at the end of this post.) Documents we are publishing here, plus others, indicate Scott Wells was in a strong position to hold a lawyer accountable for malpractice -- and that does not happen often in a system designed to protect many of its worst practitioners.

Scott Wells' legal problems hardly end with the civil malpractice matter. He currently faces federal charges, filed in March 2017, of receiving and distributing child pornography -- and is being detained at the federal prison in Leavenworth, Kansas.

Our review of the case file indicates the child-porn charges against Wells were brought with barely a whiff of probable cause. And his detention appears to run counter to federal law on the subject. Are the child-porn charges a form of payback from the legal tribe because Wells dared seek compensation from a tribe member who had performed dismally in his criminal defense? We will be examining that question in the coming weeks.

Daniel Dodson
How poor was David Shuler's representation of Scott Wells? Expert witness Daniel Dodson stated that his review of the case presented instances of malpractice that were "staggering." Here is an example from Dodson's examination of Shuler at the new-trial hearing. The testimony begins on page 57 in the third document embedded below:

Dodson: The trial, you -- you pointed out numerous differences in the testimony of the complaining witnesses or what the complaining witnesses said in their original-taped interviews, as compared to what they said in their depositions. Do you recall that?

Shuler: Correct.

Dodson: Okay. What I'm trying to get at here when -- for instance Brittanie Wells [a complaining witness], do you recall that in her taped interview, that's the subject of these transcripts, that she said her father had touched her and -- basically had touched her and exposed himself to her and tried to get her to put her mouth on his genitals. Is that the gist of what she said at that time?

Shuler: Correct.

Dodson: Okay.

Shuler: And the story kept growing as time went on.

Dodson: Okay. And then in the deposition she gives testimony indicating that he turned her over and basically entered her from behind and had intercourse with her -- .

Shuler: Correct.

Dodson: -- is that correct? Did you consider at that point asking her why there was such a complete discrepancy between what she had said in the taped interview and what she was saying now under oath?

Shuler: I realized there was a discrepancy, but I did not ask the question.

Dodson: Did you consider asking the question?

Shuler: It's been so long, I couldn't honestly tell you if I did or not. I mean -- of course, it was something obviously noticeable that she -- and honestly at that point, I didn't see a whole lot of benefit to asking that question. I still don't see a whole lot of benefit to asking that question. What I was more concerned -- I wanted to hear what she had to say, and I -- her discrepancies were important,  obviously.

Dodson: Okay. So you didn't see any benefit to pointing out to her that she'd given two different stories and, for instance, and that one of them obviously had to have been false and exploring that --

Shuler: I did not ask her that.

Dodson: -- issue with her? Did you consider asking -- asking her that question and --

Shuler:  I -- can't say one way or the other, I really can't. It's been so long ago. But -- I mean, I noticed it, but I did not ask that question.

Dodson: -- Well, did you -- looking back, do you see any potential benefit in asking that kind of question?

Shuler: Possibly.

Dodson: Okay. Could it be, as would be indicated by the Tracy Hercher [another complaining witness] transcript, that perhaps you hadn't made a recent review of the videotapes or the reports and that you were not completely aware of the --

Shuler: No. I was aware of -- that that was -- I was aware that that was new information. The from-behind penetration was new, and I was aware of that.

Dodson: All right. And so throughout the depositions, you're saying that you -- it's your testimony now that you were aware of the changes in these girls' stories, and you chose not to address them at that point, but instead, to just address those discrepancies at trial?

Shuler: Well, you'll have to address "specific." I mean, there may have been some discrepancies I did not notice. I can't say one way or the other.

(To be continued)


Anonymous said...

A court's finding of ineffective assistance of counsel is a pretty serious black mark for a lawyer.

Anonymous said...

Maybe your brother needs to stick to divorce cases.

legalschnauzer said...

@9:54 --

Yes, that probably would be a good idea. Attempting to rediscover his conscience, if it was ever out there, might be another.

Anonymous said...

Real cases of child sexual abuse are awful, of course, but the possibility that children can go into court and say virtually anything and be believed . . . well, it's pretty darned scary.

Anonymous said...

So, you side with child sexual abusers these days?

legalschnauzer said...

@10:20 --

I hate to sound like Donald Trump, but "your question is stupid." It isn't a matter of siding with anyone. It's about determining if our dysfunctional court system dispenses justice or not. Many times, it does not, and this is one of those cases. The judge who issued the guilty verdict acknowledged that justice was not done, due to poor representation of defense counsel.

If you care to educate yourself, I invite you to follow along with the series. It's an eye-opener.

Anonymous said...

As an adult who spends quite a bit of time around children, this kind of story sends shivers down my spine.

Anonymous said...

Five life sentences?


Anonymous said...

This is the kind of legal journalism that makes this blog stand out. Whether it involves your brother or not, this is your best kind of reporting -- the kind that truly educates the public about the shortcomings of our justice system. Look forward to upcoming posts in the series.

Anonymous said...

Funny. I can't recall you ever pointing out the deficiencies in cases against other accused child molesters and child pornographers. But now that it involved your brother... lol

Anonymous said...

Do I have this straight? Scott Wells currently is in federal prison on child-pornography charges?

legalschnauzer said...

@12:58 --

Funny. I've never claimed to report on every kind of court case under the sun. If it's a case that I become aware of, I an get the documents, and it fits within the overall scope of this blog, I'm likely to report on it. You can check this blog and find all kinds of court cases -- criminal, divorce, child custody, qui tam, FOIA, RICO, conspiracy, constitutional, etc. -- that have noting to do with my brother, or me. If you aren't too lazy, feel free to look them up.

legalschnauzer said...

@1:01 --

Yes, you have that straight. At last report, he was being detained at Leavenworth, KS. I will be reporting on that angle to this smelly case. As I note in this post, it all looks an awful lot like payback, instigated by someone.

Interestingly, the prosecutor in the federal child-porn matter -- James Kelleher -- is the same guy who was state prosecutor in the child sexual abuse case where the guilty finding was overturned.

My research shows no signs of probable cause in the criminal complaint and no grounds for detaining Mr. Wells, without bond. The record shows that he essentially has been kidnapped, much as I was in Alabama.

legalschnauzer said...

@12:58 --

BTW, if you know of such a case that doesn't involve my brother and generally fits in the scope of this blog -- case originates in Alabama or Missouri, although I report outside those boundaries in some cases -- let me know.

My contact info is available on the front page of the blog, so you are welcome to reach me by email. If you want my phone number, let me know.

Anonymous said...

Balch and Bingham and Drummond and lobbying and indictments again yall!


"A Jefferson County grand jury has indicted the Southeast regional administrator of the Environmental Protection Agency and a former Alabama Environmental Management Commissioner for violating state ethics laws.

Charges include multiple violations of Alabama’s Ethics Act, including soliciting a thing of value from a principal, lobbyist or subordinate, and receiving money in addition that received in one’s official capacity, according to the Alabama Ethics Commission.

Before being appointed by President Donald Trump to serve as the Region 4 administrator of the EPA, Trey Glenn worked closely with the Birmingham-based law firm Balch & Bingham and one of its clients, Drummond Co., to fight EPA efforts to test and clean up neighborhoods in north Birmingham and Tarrant."

Anonymous said...

Additional coverage:

"Breaking News: Balch Stooges Indicted"


"Breaking News: Balch Stooges Indicted"

legalschnauzer said...

@5:30 --

That's big news; thanks for sharing. Trey Glenn has been walking the ethical tight rope for a long time. Maybe he's finally fallen off?

Interesting that this is a state indictment, involving state ethics law. I know some folks believe Jay Town provided cover for certain political types in the federal case. Looks like this matter will be out of Town's hands.

legalschnauzer said...

@5:33 --

Thanks for sharing the URL to Ban Balch story on this. I strongly encourage readers to follow Ban Balch on this very important story. They have been out front on it for a long time.

I have a vague memory that Trey Glenn has been associated with a number of right-wing luminaries in Alabama -- Luther Strange, maybe Jeff Sessions? Anybody know about that? I need to do some research on that matter.