Tuesday, December 4, 2018

David Shuler, unable to react to false testimony that Scott J. Wells had scars on his penis, handed his client a guilty verdict and a possible five life sentences

Daniel Dodson
(Third in a series)

Public records indicate Missouri resident Scott J. Wells paid Springfield attorney David Shuler (my brother) about $17,000, plus expenses, to defend him in a child sexual abuse case. What did Wells get for his expenditure? He got a guilty verdict -- so flimsy it later fell apart before the same judge who found Wells guilty -- and was looking at five life sentences, plus 55 years. It all could have been avoided if David Shuler had thought to ask one obvious question. But Wells had to hire another lawyer, to the tune of about $60,000, to get David Shuler's "handiwork" cleaned up and the verdict overturned, due to ineffective assistance of counsel.

State of Missouri v. Scott J. Wells (No. 31302CF5509) is a horrifying story of what can happen in our "justice system" when four little girls accuse a man of sexually abusing them, it goes to trial even though their stories are repeatedly changing in discovery, a judge issues a guilty verdict -- and that collapses only when, in a post-trial hearing, one of the complaining witnesses is shown to have clearly lied. The lie had been obvious at trial, but David Shuler was too incompetent, too indifferent, too compromised (or a combination of all three) to ask the question that would have set his client free.

After the guilty verdict had been tossed, Wells asked Shuler in writing to return his money; after all,  the court had found Shuler's representation fell to the level of ineffective assistance of counsel, but Shuler refused. He kept roughly $20,000 for "services" that left his client staring at five life sentences (and then some) -- for a crime he did not commit.

In preparation for this series of posts, I sent David Shuler an email asking why he had refused to return Scott Wells' money. We've shown that Mr. Shuler owns more than $1 million in Missouri real estate, so it doesn't appear he would miss the money Scott Wells paid him -- and which Shuler definitely did not earn. But David Shuler has not responded to my queries. (More on the subject of Shuler's fees in an upcoming post.)

Daniel Dodson, the Jefferson City attorney who got the Scott Wells guilty verdict overturned, served as an expert witness for Wells in his legal-malpractice claim against Shuler. At one point, Dodson describes the level of malpractice in the underlying criminal case as "staggering." Below is testimony from Daniel Dodson's deposition in the malpractice case, and as you will see, Dodson does not mince words about David Shuler's performance. The testimony begins on page 42 of the first document embedded at the end of this post. The questioner is Scott E. Bellm, from the Turner Reid Duncan firm of Springfield, representing David Shuler:

Bellm: Can we agree that it was not -- maybe in hindsight, things might have been done different, but it was not necessarily a breach of the standard of care for him to waive the jury [trial]. . . .

Dodson: No, I think it was a trial strategy -- a trial strategy borne of not knowing anything about doing these cases and generally having a make-up -- Mr. Shuler's make-up -- he's probably still not tried a jury trial and may never do it. He's not a jury trial lawyer.

Bellm: In any event, even if he had not waived jury and they would have had a jury trial, there's no way in the world anybody in this room or anywhere else could ever predict one way or the other what the outcome would have been?

Dodson: With David Shuler as his lawyer, I can predict what the outcome --

Bellm: Or with anybody?

Dodson: I can predict what the outcome would have been in this case with proper preparation -- there was so much -- I had forgotten half of what came up in that transcript, and I didn't get to half of my witnesses that came up. In this case, I think it was rather obvious that Scott Wells wasn't guilty and that there were so many holes and so many problems and then the stuff that came up in trial that wasn't reacted to, I think the case was a winner.

Bellm: You believe, as you sit here today, that had a different lawyer with different skill sets, different preparation, if that lawyer would have tried this case in Greene County back in August of --

Dodson: 2004.

Bellm: -- four, in front of a jury of unknown people, that you can say with any degree of certainty that there would have been an acquittal of all 14 charges?

Dodson: There may not be certainty in this business, but I can tell you that I believe there would have been an acquittal in front of a jury or in front of Judge [Don] Burrell.

Bellm: If all -- of all charges?

David Shuler
Dodson: If it had been properly prepared, yes, absolutely. I think when we stopped the [new trial] hearing for a pause, and Burrell called us back eventually into chambers and said, I have heard enough, and I do think, ultimately, based on what he said -- and I tried to appeal it, but it just -- it wasn't right for appeal, I think, ultimately, if we had gone back to trial, having been compromised by Shuler's representation, having had all of my potential trial strategies exposed in that hearing, there was a possibility we could have lost, and that's why we compromised out {settled] the case.

But I think eventually we would have won on appeal, because I think what I think Judge Burrell did was, as the trier of fact, find that he had a doubt about his own verdict beyond a reasonable doubt. And I think eventually there would have been an acquittal, based on the fact that the original trier of fact set aside his own finding of guilt. I think it would have.

Bellm: And in all fairness, Judge Burrell had the benefit of hearing evidence that you understand, likely, probably would not have been admitted at trial?

Dodson: He did, but I don't think he considered it. I think he considered -- and I think, you know, the crux of this case is the scars on the penis evidence, and that is what did it. Based on what he said in chambers, he said, when I heard that and heard that she said he had scars on his penis for the first time and that -- and he didn't even have the fact that Shuler didn't remember, but Scott will tell you that Shuler didn't even ask.

Part of defending a case like this is having a belief in your client, if your client says he didn't do it. And Shuler didn't have enough of a belief in his client that he had any doubt that this girl was correct about the scars on the penis and didn't even ask Scott if he had scars on his penis, and therefore, did not react and put in evidence which was, frankly, right there behind his zipper, that this young woman was completely up a tree.

Bellm: And you agree with me that the first time this testimony was ever given was during the trial?

Dodson: It was.

Bellm: And --

Dodson: But I can tell you when I got that transcript, the first thing I did -- I was at my home in Maryland -- I still lived out in the Washington, D.C., area, and I had this transcript and I saw that, and I immediately called Scott Wells and said, do you have scars on your penis?

And he said, no.

And I said, did Shuler ever ask you if you had scars on your penis?

And he said, no.

Now, that's an immediate reaction, if you're a defense lawyer, capable of defending these cases.

Bellm: And he may have asked him and he may have said no, but there is no way to know what weight or credibility the fact finder would have given that testimony?

Dodson: I'm sorry?

Bellm: If David would have asked Mr. [Wells] that question --

Dodson: He indicated he wasn't sure if he did. If David had asked Mr. Wells that question --

Scott J. Wells
Bellm: That's not my question. My question is: If David would have asked Scott Wells on the stand, in light of this new testimony during trial, he had had scars on his penis, and if Mr. Wells would have said no, then the fact finder would be free to give his testimony whatever weight and credibility that he chose appropriate?

Dodson: I don't think, especially in this case, a judge-tried case might have been better, because first of all, if the prosecutor didn't do something to refute it, you're basically in a position with a presumption of innocence and a reasonable doubt standard to take that at face value unless it's questioned. But the evidence was there.

I sent Scott to a doctor, because frankly, I didn't want to see his penis, and got a report that said he has no scars on his penis. That couldn't have been done that day. The appropriate scenario would be, judge, let's go back into chambers, my client has something he wants to show you, and the evidence would have been irrefutable at that point.

That's not a matter of just asking Scott. It's a matter of being aware of what's going on and at least asking your client to figure out that you have exculpatory evidence right there, frankly, in his pants.

(To be continued)

Previously in the series:

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

* Missouri attorney David Shuler took no action at trial . . . (11/27/18)

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