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)

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