Wednesday, January 30, 2019

Scott J. Wells, who had his conviction overturned due to David Shuler's woeful lawyering in a child sex abuse case, now faces federal child-pornography charges, which sound like retaliation from the legal tribe

Scott J. Wells

A Missouri man, whose conviction for child sexual abuse was overturned due to my brother's ineffective assistance of counsel, remains in legal jeopardy -- and our investigation indicates the legal tribe is retaliating against him for fighting back against bogus criminal charges and suing the lawyer (David Shuler) who almost caused him to receive five life sentences.

Scott J. Wells, of Springfield, faces federal charges of receiving and distributing child pornography, with a tentative trial date of Feb. 11. Our review of the public record suggests the charges are preposterously weak, with no sign of probable cause that Wells committed the offenses under 18 U.S. Code 2252(a)(2) and (b)(1). But Wells' two court-appointed lawyers -- U.S. Public Defender David Mercer (no longer on the case) and private attorney Shane Cantin (of Springfield's Carver Cantin and Mynarich) -- have done virtually nothing to defend him.

Cantin recently sent a letter to Wells stating that he had no defense and that Wells was almost certain to be convicted -- likely receiving a stiffer sentence if he goes to trial rather than pleading guilty. (More on the letter in an upcoming post.) Despite that, Cantin appeared at a recent pre-trial hearing and told U.S. Magistrate David P. Rush that he was "ready for trial." Sources tell Legal Schnauzer that Cantin has not even shown his client the government's evidence against him, which Wells is entitled to see under the Sixth Amendment, so how can Cantin be ready for trial?

Here is perhaps the most disturbing part about U.S. v. Scott James Wells (17-mj-2020-DPR). Wells has been detained for almost two years, spending all of that time at a facility in Leavenworth, Kansas, or various county jails in Missouri. Wells has been behind bars because the trial court apparently considers him a threat to society. Wells is virtually blind in one eye and has a benign brain tumor that forces him to use a walker or wheelchair to get around, but he's a threat to the public?

(Note: The criminal complaint in U.S. v. Wells is embedded at the end of this post.)

Chief prosecutor James J. Kelleher apparently pushed for detention based on the child sexual abuse case where the conviction against Wells was overturned. Let that sink in for a moment: A U.S. citizen has been behind bars for almost two years largely because of an earlier case where a conviction was overturned after a complaining witness was found to have lied under oath about Wells having scars on his penis.

Kelleher was the state prosecutor in the child sexual abuse case, so perhaps he wants to punish Wells for beating weak charges the first time around. Wells agreed to an Alford plea of child endangerment to dispense with the first case. Trial Judge Don Burrell probably could have dismissed the whole case once a complaining witness was found to have lied about penis scars. But Burrell chose to overturn the conviction and give the state a chance to re-try, meaning Wells faced the prospect of going before a pro-prosecution jury in conservative Southwest Missouri.

With an Alford plea, a criminal defendant does not admit to the unlawful act and asserts his innocence. In essence, it is a type of guilty plea that allows the prosecution to save face for bringing a weak case. Nothing in the record even hints that Scott Wells actually endangered a child. Federal prosecutors now are trying to hold that case against Wells, even though he ultimately won it.

Shane Cantin
Wells' legal-malpractice lawsuit probably cost David Shuler a substantial amount of money -- maybe six figures or more -- and the case file indicates Wells was on his way to winning it. Wells cleared the major hurdle of summary judgment, and the case was on the verge of trial -- with the sides working to formulate jury instructions -- when Wells' attorney (John J. Allan, of St. Louis) bailed out, claiming he needed more money. Wells' middle-class family already had paid more than $80,000 to beat the original charges, so they could not afford to pay more.

Allan's actions make no sense because his client was one of the few who gets almost to trial in a legal-malpractice case, and expert witness Daniel Dodson had provided devastating deposition testimony against David Shuler. The court file is voluminous, but we've found no sign that David Shuler even had an expert witness -- a lawyer who was willing to go under oath and state that Shuler handled the Wells case with the proper standard of care. 

By the way, public records show the Missouri Bar has disciplined John J. Allan at least twice. That raises this question: What kind of lawyer did Scott Wells have in his legal-malpractice case? Did someone dangle incentives that caused John J. Allan to leave his client high and dry on the verge of a major court victory?

Why is the child-porn case against Scott J. Wells so lacking? Here are just a few reasons, based on our review of the record:

* A fundamental provision of the relevant law is that the accused must "knowingly" receive or distribute child pornography. We see no probable cause that Scott Wells did either.

* A fundamental provision of the relevant law is that the alleged child victims must be minors, age 17 or younger. We see nothing in the criminal complaint that proves the alleged victims were minors -- or, more importantly, that Scott Wells knew they were minors.

* Case law holds that an accused must take "affirmative actions" to show knowing receipt, possession, or distribution. The record indicates that a woman in Tennessee was a Facebook friend of Scott Wells and sent him an explicit photo of her daughter. There is no evidence that Scott Wells asked for the photo or even knew what it was when he clicked on it. Wells sent the photo to the daughter to alert her to the mother's actions. There is no indication he did anything else with it, but federal prosecutors apparently claim warning a victim amounts to distribution of child porn.

* We see no grounds in the record for detaining Scott Wells as a threat to the community, and there is nothing on file to suggest either of his court-appointed attorneys tried to keep him out of detention or get him out of detention once he was wrongfully behind bars.

Despite the utter lack of probable cause on central elements of the offense, U.S. Magistrate David P. Rush approved Wells' arrest, a search of his home, and his detention. Is Rush little more than a rubber stamp for prosecutors? Is he part of a scheme to punish Scott Wells for standing up to the legal tribe?

We will address those questions and many more in upcoming posts.

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