Tuesday, November 27, 2018

Missouri attorney David Shuler took no action at trial to determine if witness claim that Scott J. Wells had scars on his penis was accurate -- leaving his client with a devastating conviction for child sexual abuse

Scott J Wells
(Second in a series)

The key moment in the child sexual abuse case against Missouri resident Scott J. Wells came when one of four complaining witnesses -- all of roughly adolescent age or slightly younger -- stated at trial that Wells had scars on his penis. Records indicate Wells' defense attorney, David Shuler (my brother), of Springfield, did little or nothing in reaction to the statement -- and his client wound up being convicted, facing a likely punishment of five life sentences, plus 55 years.

The dire outlook for Scott Wells only changed when David Shuler withdrew, and a second defense attorney examined the case -- noticing a potential problem with the testimony about a scar on Wells' penis.

Daniel Dodson -- the second attorney, from Jefferson City -- saw the obvious question that David Shuler apparently did not: Was the testimony about Scott Wells' penis true, was there a way to prove it was false -- and if it was false, what implications did that have for the prosecution's case against Wells?

Is it any wonder that Scott Wells, after his criminal conviction was overturned, sued David Shuler for legal malpractice -- and the case got almost to trial stage, with the two sides formulating jury instructions, when Wells' attorney mysteriously bailed out on him?

Daniel Dodson
We will look at the circumstances that caused Scott Wells' conviction to be thrown out on a Motion for a New Trial -- due to ineffective assistance of counsel -- and how Wells appeared to be on his way to winning a legal-malpractice case against David Shuler (with a likely sizable judgment) only to have it dismissed when his attorney essentially abandoned him at the last minute.

But first, let's look at how the penis-scar issue arose during a hearing on a Motion for a New Trial. Following is testimony from Dodson's examination of David Shuler at the new-trial hearing. It begins on page 86 in the third document embedded at the end of this post. (The other documents are Part 1 and Part 2 of Dodson's testimony in the legal-malpractice case.):

Dodson: Okay. Do you recall an instance during the trial when -- when Tracy Hercher [a complaining witness] indicated that Scott Wells had shown her the scars on his penis? Do you recall that?

Shuler: I do recall that. I do recall her saying that.

Dodson: I will refer now to the trial transcript, page 58, line -- can you read lines 12 and 19?

Shuler: "You were -- he was showing me scars and stuff on his thing."

Dodson: Now, you did mention -- well, at some point, you did ask her if she's ever made that allegation before, is that not correct?

Shuler: I did, yes, that's what I recall.

Dodson: Okay. Did you consider any other ways to question her truthfulness in making that statement?

Shuler: I'm not sure I understand your --

Dodson: Did any other thoughts occur to you then, or do they occur to you now, as ways to -- I mean she just made a statement that Scott Wells has scars on his penis, in this transcript, is that correct?

Shuler: Correct.

Dodson: So anything -- did anything else occur to you or did you consider any other ways of trying to establish that that was a statement that was not true?

David Shuler
Shuler: Photographic evidence, I guess, could have been taken.

Dodson: Okay. Well, did you have -- did it -- what I want to ask: Did you ever even ask Scott Wells if he has scars on his penis?

Shuler: Yes, I did.

Dodson: So, if Scott indicates otherwise -- and so what did he tell you?

Shuler: At the table, he looked at me very surprised like he'd never heard that before; I had never heard it before.

Dodson: Okay.

Shuler: And then --

Dodson: So what did you ask him?

Shuler: I asked Scott: Do you have scars?

Dodson: And what did he say?

Shuler: He said, "No."

Dodson: And so why did you not ask him that when he was on the stand?

Shuler: I believe we did.

Dodson: The transcript will reflect --

Shuler: If we didn't, we didn't, but I thought we did.

Dodson: So if that -- if you didn't ask that question, that wouldn't have been due to trial strategy, that would have been an oversight on your part --

Shuler: Correct.

Dodson: -- is that correct?

Shuler: Correct.

Dodson: Okay. And you seem to recall that you did ask, but if the transcript reflects that you didn't ask Scott on the stand, might that be an indicator that you intended to ask Scott that question, but perhaps didn't ask him that?

Shuler: That's possible, yes.

Dodson: Okay. So it's possible you didn't even ask Scott whether he had scars on his penis --

Shuler: Sure.

Dodson: -- at trial?

Shuler: I thought that we did, perhaps we did not, perhaps I did not.

(To be continued)

Previously in the series:

* Court finds Missouri lawyer David Shuler provided ineffective assistance of counsel (11/13/18)


Anonymous said...

Scary, scary story. These kinds of false accusations, from children, can ruin an adult.

Anonymous said...

Thanks for your reporting on this cringe-worthy, but important, issue.

ineedthat12 said...

That gives a whole new meaning to the term "Voir dire the witness".

Anonymous said...

David Shuler didn't know how to react to sworn testimony that his client had scars on his penis?

Geez, I barely earned a high school diploma, and I know how to react to that.

Why did your brother go to law school?

legalschnauzer said...

@9:51 --

It sure does!

Anonymous said...

The proof was in his pants!

Anonymous said...

Do they teach common sense at the University of Missouri Law School? Sheesh.

Anonymous said...

Sounds like an adult was telling the kids what to say, and one of the kids went off script.

Oops! That's been known to happen with kids.

Anonymous said...

Prosecutors should have been able to figure out the kids were shaky witnesses before bringing the case.

Anonymous said...

Were the charges dropped against Mr. Wells?

legalschnauzer said...

@2:47 --

No. The judge reversed the guilty finding, but he did not dismiss the case. The two sides basically settled the case, with Wells entering an Alford plea, which (as I understand it) essentially is a guilty plea to something you did not do -- I think child endangerment, in this case -- just to get the case over with and avoid prison time. Wells was given a suspended imposition of sentence, so he was not incarcerated.

I'm not sure about all the judge's options, but in my view, he should have dismissed the case (if that was an option, and I feel certain it was). I guess he opted to throw the prosecution a bone, so they would not get totally wiped out.

legalschnauzer said...

Forgot to mention that the biggest consideration re: an Alford plea, for a defendant, is to avoid the uncertainty of a jury trial -- and the possibility of having a felony on your record.

e.a.f. said...

Not only was the lawyer, your brother an idiot, but so were the cops and prosecuters. Some where some one might have taken notice of the witnesses testimony and asked to examine the alleged criminal Makes one wonder what was really going on. what was this really about.

legalschnauzer said...

e.a.f. --

Exactly. Lots of people were responsible for this atrocity, and it's still going on to an extent. (Will cover that and much more in upcoming posts.) Under Missouri law, prosecutors are "ministers of justice" -- try not to laugh when you read that -- and have a duty to seek justice, not just convictions The sad truth is told in the Scott Wells case -- prosecutors just want notches on their belts, and they don't care if some of those notches are for innocent people. They had reason to know at least some of these witnesses were lying, and they did nothing about it.