Monday, December 10, 2018

Expert testifies that Missouri lawyer David Shuler did not believe in his own client, leaving Scott Wells with a bogus guilty verdict and possible five life sentences

Scott J. Wells
(Fourth in a series)

Missouri resident Scott J. Wells was found guilty of child sexual abuse in 2004 -- facing a likely punishment of five life sentences, plus 55 years -- and public records indicate his attorney (my brother, David Shuler) exhibited dubious judgment and committed a litany of technical errors that left his client in a dire position. Perhaps David Shuler's most grave error was failing to react to testimony from one of four complaining witnesses that Wells had scars on his penis. A second attorney, Daniel Dodson of Jefferson City, took over the case and easily was able to prove the penis testimony was false -- leading Judge Don Burrell to overturn his own guilty verdict at a new-trial hearing.

Dodson, acting as an expert witness in Scott Wells' subsequent legal-malpractice lawsuit, said David Shuler failed to meet the standard of care required of a criminal-defense lawyer in ways that go well beyond legal and strategic blunders. In fact, Dodson said, David Shuler did not believe in his client, and that led to a bogus conviction, damaging Wells in myriad ways.

State of Missouri v. Scott J. Wells (No. 31302CF5509) shows that a prosecution's case can implode in a hurry when a defense attorney is alert enough to show that at least one key witness has produced unreliable testimony. It also shows the peril a criminal defendant can face when his own attorney -- in this case, David Shuler -- is not fighting for him.

Dodson's deposition testimony in Wells' legal-malpractie claim against David Shuler illuminates both of those issues. At one point, Dodson describes Shuler's level of malpractice in the underlying criminal case as "staggering." Below is testimony from Dodson's deposition, and it provides a rare look at one attorney's unvarnished opinions about the performance of another attorney. The testimony begins on page 91 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: Of course, your goal at the [new trial] hearing that day was to convince the Court that -- not necessarily of Mr. Wells' innocence, but to convince the Court that there was evidence, testimony, witnesses out there that should have been used at trial, and those witnesses may very well have made a difference in the outcome. That's the standard you were operating that day, true?

Dodson: Well, that. Again, the scars on the penis evidence was the thing that could have been done right there that had to have been done. And it's hard to describe, but your focus in this case -- first of all, you have to go in with -- to present yourself, even if you don't believe it, as if I'm here to tell you, the trier of fact, that this man didn't do what he's accused of. And when something like that comes up, the penis evidence, it's obvious to me that David Shuler thought Scott Wells did it, and that, well, if she says there were scars on his penis, obviously there were scars on his penis. It didn't even occur to him to ask that question.

Bellm: Well, let's -- let me ask you this: There was just one witness who said that he had scars on his penis, right?

Dodson: That's correct.

Bellm: Which one was it?

Dodson: Off the top of my head -- it was not one -- I think it was the cousin of the stepdaughter.

Bellm: Okay.

Dodson: I don't think it was either of the natural daughters or the stepdaughter.

Bellm: So there was a total of four victims?

Dodson: Four complaining witnesses. I have a problem with the term victim, of course.

Bellm: I understand. One of them testified that he had a scar on his penis. So if what you are telling me is right, if he were able to prove, unconditionally, at trial, that that isn't true, then that would obviously impeach the credibility of one of the three complaining witnesses, true?

Dodson: One of the four, yes.

Bellm: One of the four, I'm sorry. Would not necessarily have affected the other three complaining witnesses and the felony counts relating to what he allegedly did to those three girls?

Dodson: It would not necessarily have directly affected them. But keep in mind here that there was evidence, most of it not pointed out by Shuler. First of all [complaining witness] Brittany Wells had told the same story, like, two years before or a year before and nobody believed her because she was all over the map with the allegations, her demeanor and everything said there's something wrong here and there's no great reason to believe this.

Daniel Dodson
It was after contamination by her that little sister made allegations. This was all -- there was plenty of evidence of contamination and reasons for the other ones to have come up with it. And the most attenuated one, the cousin who made the scars allegation, probably going in, was the most credible.

And once that little smoking gun comes up that says this one's up a tree too, the rest fall, and they did fall. And that's -- again that's what Judge Burrell said in chambers. I don't think he made it clear in the record, but that was the reason. Once he saw the penis evidence, he's like, I can't stand behind these findings of guilt.

And there would be some argument -- the only argument against considering that an acquittal is that, well, the prosecutor might have been able to refute that, but not in this case, because that was evidence where the smoking gun was there. I mean, the way to prove that Scott Wells didn't have scars on his penis was there in the courtroom.

(Note: We ran this post for several hours last Thursday, but it never went out via social media because I wound up wrestling with a stomach virus and had several legal documents to prepare, so it became a day of distractions. I decided to take the post down and save it for today. Sorry for the confusion.)

(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)

* David Shuler, unable to react to false testimony that Scott J. Wells had scars on his penis . . . (12/4/18)

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