Monday, July 29, 2019

Documents from the Scott J. Wells child-pornography case in the Missouri Ozarks unmask our federal courts in all of their goofy, crooked, and clown-car glory

Scott J. Wells

How clownish was the process that caused Missouri resident Scott J. Wells to be detained for more than two years on federal child-pornography charges, even though the government's own narrative shows it would have been physically impossible for Wells to commit the alleged offenses? The process is spelled out in three documents (all embedded at the end of this post) -- and they show the proceedings would have had to improve considerably to be a dumpster fire.

Perhaps the nuttiness best shines through in the middle document below -- a "Minute Sheet" prepared by U.S. Magistrate David P. Rush for a combined preliminary/detention hearing. Get a load of Rush's words under the "Preliminary Hearing" heading:

Court takes notice of the court file, which includes a signed affidavit in support of the complaint. No evidence presented with regard to probable cause. Court finds probable cause and orders the matter held for grand jury or other proceeding.

If you did a double take upon reading that, you aren't alone. A federal judge actually writes that the prosecution presented no evidence regarding probable cause, but he found probable cause anyway. Those are your taxpayer dollars at work, folks.

It doesn't get any better from there. All three documents contain gross deception, falsehoods, and nonsense. Consider the first document embedded below -- United States Motion for Pretrial Detention and for a Hearing Pursuant to 18 U.S.C. 3142(e) and (f). In item 6(b), the document states:

In relation to the weight of the evidence supporting the charges in the Complaint, Facebook initiated SyberTip 16099575 on December 21, 2016, and CyberTip 16533142 on January 15, 2017, regarding a user uploading and sending a file containing child pornography. Law enforcement traced the account back to the defendant  and executed a search and seizure warrant at the defendant's residence. A forensic preview examination on the defendant's laptop computer revealed 60 images of child pornography.

The government conveniently leaves out several critical points:

(1) The Facebook CyberTips did not involve just one image file; it involved two -- and the feds' criminal complaint states that Wells uploaded both at the same exact same time, down to the second. That, of course, is physically impossible to do. That means there was no probable cause to search Wells' residence, and anything obtained there was the fruit of an unlawful search.

David P. Rush
(2) The feds' criminal complaint provides zero evidence that Wells knowingly possessed the 60 images referenced above.

(3) The feds provide no evidence that anyone in the images was a minor (under age 18). In fact, the complaint does not mention the age of anyone.

The government resorts to more deceit in item 6(c):

In relation to the history and characteristics of the defendant, the defendant is unemployed and lives at home with his mother and father, who are in their 70s. On August 19, 2004, Wells was convicted of sexual misconduct, statutory sodomy, incest, and child molestation in the Circuit Court of Greene County, Missouri, case number 31302CF5509. On November 17, 2004, the Circuit Court granted Wells' motion for a new trial due to ineffective assistance of counsel, and vacated Wells' convictions. On July 5, 2006, Wells pleaded to four counts of endangering the welfare of a child.

What does the government conveniently leave out?

(1) Wells' convictions were not overturned just because of ineffective assistance of counsel (by my brother, Missouri attorney David Shuler). It also involved at least one accusing witness being caught in a clear lie under oath.

(2) Judge Don Burrell could have, and probably should have, dismissed the child molestation case against Wells altogether. But he threw the state a bone and granted a new trial, with Wells entering an Alford plea to endangering the welfare of a child. An Alford plea, by definition, generally means that the defendant did not actually commit the offense in question, but is pleading to dispense with the matter and avoid the dangers of trial for both sides. We've seen nothing in the record that remotely suggests Scott Wells actually endangered the welfare of a child.

(3) As for Wells' employment status, the government fails to mention -- and the public defender probably did not even mention it -- that he is virtually blind in one eye and must use a walker to remain upright and mobile due to a benign brain tumor he's had since childhood. Yep, sure sounds like a danger to society.

Let's return to the second document embedded below -- Judge Rush's Minute Sheet. Under "Detention Hearing," it states:

The Court takes note of its own file , including the Pretrial Services Report prepared by the USPPTS Officer. The Government has filed a Motion for Detention Hearing (Doc. 2) Arguments made regarding Defendant's custody. The Court finds, by clear and convincing evidence, that the Defendant is a danger to the community. Accordingly, the Court finds an adequate basis for detention and will issue a written order.

Rush finds "clear and convincing evidence" that Wells is "a danger to the community"? How? It certainly is not in the government's Motion for a Detention Hearing. And the criminal complaint describes an offense Wells could not have committed if he wanted to. On top of that, Rush finds in the same Minute Sheet that he has no evidence of probable cause before him. Yet, he magically determines that Wells is a danger to the community. I almost want to guffaw upon reading this garbage.

As for the third document embedded below -- Rush's order regarding detention -- consider these

The factors to be considered by the Court in determining whether the defendant should be detained pending trial are enumerated in section 3142(g). The Court has already noted that this case involves a minor victim. The evidence at the hearing established that the weight of the evidence against the defendant is overwhelming.

The evidence is "overwhelming"? This is the same judge who stated in his own Minute Sheet that the hearing involved no evidence with regard to probable cause. This guy can't keep his story straight. On top of that, Rush notes the allegations involve a "minor victim." The criminal complaint, however, does not list the age for any alleged victim. Without evidence that the victim was under 18 years of age, there is no proof the offense involved a minor.

It seems clear Rush did not read the criminal complaint closely -- if he bothered to read it at all. The judge's actions in the case should be enough to shock the conscience, but I've seen this tired act from numerous judges before. They rely on a somnolent mainstream press to make sure that documents like this usually never make the light of day.

At a pretrial conference last week, Wells' third court-appointed lawyer, Brady Musgrave gave no indication that he intended to seek dismissal of the charges based on a criminal complaint and indictment that both are deficient. He also showed no signs of filing a pretrial motion to suppress evidence that was the product of an unlawful search not based on probable cause.

It all suggests to me that Rush, chief prosecutor James J. Kelleher, and all three of Wells' court-appointed attorneys (David Mercer, Shane Cantin, and Brady Musgrave), are conspiring to cheat Scott Wells and trample his constitutional rights. If my guess is on target, this is criminal behavior (obstruction of justice, misprision of a felony, deprivation of rights under color of law) and should result in an investigation that would send several law-degree types to prison for quite a stint -- if we had a justice system that was remotely functional.

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