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.


Anonymous said...

This guy has been held behind bars for two years, and he hasn't been convicted of anything? That's outrageous.

Anonymous said...

Whatever happened to "innocent until prove guilty"?

legalschnauzer said...

@8:36 --

Yep, that is the shape of things. And @8:44, darned good question.

Anonymous said...

Sounds like the feds are going, "Let's throw him in jail first and we'll decide if he's guilty later."

Anonymous said...

I read the first 2-3 pages of the criminal complaint, and it says this case started with a "cyber tip" from Facebook.

I can understand Facebook taking action over a possible violation of its terms of service, but how would Facebook know that the image was "knowingly" sent or received.

This smells to me like a company reported a user for a possible crime when it likely does not even know the definition of the crime.

legalschnauzer said...

@9:43 --

Very good point. It seems Facebook sends these "cyber tips" and trusts law enforcement to handle them properly. But as we've shown in numerous posts, cops can be some of the dumbest people ever, and prosecutors can be among the most crooked individuals to walk the earth.

Scott Wells essentially has lost two years of his life because Facebook reported a possible crime and probably has no clue how the relevant statute defines the crime.

Receiving, sending, or viewing an image of child pornography is not a crime. "Knowingly" doing any of those things can be a crime. Like you, I doubt Facebook knows the difference.

legalschnauzer said...

Some readers might be interested in a definition of "probable cause," which is an amorphous concept that most of us struggle to grasp. This is from a U.S. Supreme Court case, 1949:

". . . where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed."

A central element of the child-porn law is that the accused acted "knowingly." I don't see it in the criminal complaint. I encourage readers to go over the complaint -- it's about 10 pages -- and see if they see any sign of knowing conduct.

Anonymous said...

The judge probably issued the arrest warrant and search warrant without even reading the criminal complaint. As you say, he's a "rubber stamp."

Anonymous said...

I get stuff in email or Facebook all the time, and I often don't know what it is. Based on this case, if I were to click on something and up pops child porn, I could be arrested.

That's scary s--t.

Anonymous said...

I wonder if Facebook could have liability for this.

Anonymous said...

Scott Wells has pissed of the "Midwest Mafia," and they are trying to make him pay. He's dealing with organized crime.

Anonymous said...

The same guy who prosecuted Wells in the child sexual abuse case -- and wound up with egg on his face when the case fell apart -- also is prosecuting this child-porn stuff?

Gee, that's not suspicious.

Anonymous said...

This is a classic illustration of how a corrupt "justice" system can ruin people. The Wells family had to pay about $80,000 to beat the first charges when a complaining witness was caught lying under oath. Now, drained of their funds, they face more charges and can't afford to hire a decent lawyer and have to put up with whatever the court dumps in their laps.

Even if you win these cases, you are ruined financially. Horrible.

Roxx said...

If this lawyer, Cantin, can't figure out a defense for his client, he needs to inform the court and withdraw from the case. His job is to develop a defense, and one obvious defense is that Wells did not "knowingly" receive or distribute child porn.