Wednesday, July 24, 2019

The government's grounds for keeping Scott J. Wells behind bars for more than two years on child-porn charges would have to improve to be flimsy

Scott J. Wells

How has Missouri resident Scott J. Wells been held behind bars for more than two years, even though he has never gone to trial, he's been convicted of nothing, and the child-pornography charges against him involve allegations that are physically impossible for him to have committed? I have a two-pronged answer to that question: (1) Bad law; (2) Bad people enforcing the law.

As Legal Schnauzer recently passed its 12th birthday, our over-arching theme has been: The law, in many cases, makes sense, but the people who enforce it (lawyers, judges, prosecutors, cops) tend to be crooked, incompetent, or both. In the Scott Wells case, both the law itself and the people enforcing it are of dubious character.

Wells has been in prison or jail since spring 2017 because of 18 U.S.C. 3142 ("Release or detention of a defendant pending trial"). In a society where an accused is considered innocent until proven guilty and is entitled to a speedy trial, I suspect Scott Wells has been treated in a wildly unconstitutional fashion. In fact, all or part of Sec. 3142 probably would be overturned if a few members of Congress had the temerity to challenge it in this "tough on crime" era.

Wells has been deprived of a speedy trial because the first two court-appointed lawyers assigned to defend him -- David Mercer and Shane Cantin -- did almost nothing on the case. We attended a pretrial hearing yesterday and saw no sign that the third court-appointed attorney, Brady Musgrave, will spring into action (seeking to have the case lawfully dismissed) at any point before the August trial date.

Sec. 3142 is long and unwieldy, so we will try to focus on its key elements. First, it allows the prosecution to seek a detention hearing and order. The judge is supposed to make a determination on detention or release based on four primary factors:

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence, involves alleged sex trafficking of children, terrorism, a minor victim, or a controlled substance, firearm, explosive or destructive advice;

(2) The weight of the evidence against the person;

(3) The history and characteristics of the person, including his character, physical and mental condition, family ties, length of residence in the community, past conduct, criminal history, history relating to drug or alcohol abuse, and record of appearing at court proceedings;

(4) The nature and seriousness of the danger to any person or the community that would be posed by the person's release.

How does Wells score on this four-point checklist? Based on available information, he scores well. Re: item No. 1, there is no evidence that Wells was connected to any controlled substance, firearm, or destructive device. The issues about a "crime of violence" and "a minor victim" come under the heading of bad law and poor investigative work. 18 U.S.C. 3156 includes possession and distribution of child pornography as "crimes of violence." The law on sexual abuse and exploitation repeatedly refers to "contact offenses," where an adult makes inappropriate and unlawful physical contact with a minor. When the allegation is that an accused merely viewed an image of child pornography -- and maybe did not even do so knowingly or intentionally -- how can that involve violence? Some might consider the conduct deplorable or disgusting, but it's not violent. As for "a minor victim," that is a matter of simple arithmetic: Is the alleged victim under the age of 18? Nothing in the criminal complaint suggests investigators know the ages of any alleged victim. They make several references to "minors," but they provide zero evidence about anyone's age.

As for item No. 2, the weight of evidence against Scott Wells is zero. He became a target because of a Facebook "CyberTip" about a suspicious image that had been uploaded to his account. But the criminal complaint states that Wells uploaded two different images at the exact same time (to the second), which is physically impossible and cannot form probable cause for his arrest or the search of his home.

As for item No. 3, Wells has plenty of family ties in the community and has lived in Springfield, MO, for most (maybe all) of his life. The only criminal history I've found involved the child sexual abuse case, where a conviction was overturned due to ineffective assistance of counsel provided by my brother, attorney David Shuler. I'm unaware that Wells has any significant history with drug or alcohol abuse or failing to appear at court proceedings.

David P. Rush
As for item No. 4, it's hard to see how Wells can be a danger to anyone. He is virtually blind in one eye, and because of a benign brain tumor he's had since childhood, requires a walker to remain upright and mobile. He was rolled into yesterday's hearing in a wheelchair.

The detention process in U.S. v. Wells appears to have involved three documents -- (1) The government's Motion for Pretrial Detention and Hearing pursuant to 18 U.S.C. 3142(e) and (f), from chief prosecutor James J. Kelleher; (2) The court's minute entry for the preliminary hearing and detention hearing; and (3) The court's order regarding detention, from U.S. Magistrate David P. Rush.

All three documents contain statements that are deceptive, inaccurate, nonsensical -- or some combination of the three. We will examine those documents in an upcoming post.

We should note, for now, that the record contains no indication that Federal Public Defender David Mercer, who was representing Scott Wells at the time, filed any written response to the government's detention motion. It's not even clear that Mercer made any substantive oral argument at the hearing to keep his client free. Wells' two subsequent attorneys -- Shane Cantin and current counsel Brady  Musgrave -- have made no effort to free their client, even though there are ample grounds for doing so.

(To be continued)


Anonymous said...

This guy in a wheelchair is considered a threat to society? The judge might have had grounds to detain Mr. Wells,, but it doesn't compute with me.

Anonymous said...

Like most Americans, I deplore child pornography -- especially those who produce it, build businesses around it, and seek to profit from it. But the government characterizes viewing child pornography as a "crime of violence," and people are detained partly on that basis?

I think Congress needs to take a look at that.

legalschnauzer said...

@9:43 --

I agree Congress needs to take a look at this, but we live in a world where our elected officials feel they must appear "tough on crime," and they especially take that approach with cases of alleged child pornography.

In the Wells case, there is no evidence that the accused asked to receive certain images or knowingly distributed them. Wells essentially is being detained based on government accusations, which do not include even a hint that Wells made physical contact with anyone -- child or otherwise. In essence, the government has twisted the word "violence" into a definition that most of us would not recognize.

That's bad law, and it's one of many reasons I've treated this case as the important story that it is. It's a story of a citizen being railroaded in real time, and that's not something you often see (ever see?) in mainstream journalism.

Anonymous said...

Have you considered that maybe Scott Wells really did receive and distribute child pornography?

legalschnauzer said...

@10:41 --

Sure. But we don't arrest, detain, and try people (and search their property) in this country because "maybe" they did something unlawful. We arrest (and in some cases, detain) based on probable cause. We don't convict people because "maybe" they did something unlawful. We convict because a jury finds the government proved its case beyond a reasonable doubt.

We haven't reached the trial stage yet, but I've already shown in multiple posts that there was no probable cause to arrest and detain Scott Wells and to search his home. If Mr. Wells had a court-appointed attorney who was doing his job, this case would have been dismissed months ago. But none of Mr. Wells' attorneys has even tried to get the charges dismissed.

If you are interested in evidence that the government has no case, I would recommend you read these two posts:

Anonymous said...

What happened at yesterday's hearing?

legalschnauzer said...

The highlights:

1. Prosecutor James Kelleher offered a "plea bargain" of 15 years in prison;

2. The case was set for the Aug. 19 trial docket;

3. The parties said they likely will need three days for trial;

4. Court-appointed defense lawyer Brady Musgrave made it clear he would not take any pretrial steps to defend Scott Wells -- no effort to have the charges dismissed, have evidence suppressed as unlawfully detained, nothing. This is the third Wells lawyer who has failed to do the job of defending his client.

Anonymous said...

15 years?!! Good God, that's supposed to be a bargain?

legalschnauzer said...

Yes, that's absurd. It's also proof, in my opinion, that this case is not remotely about "protecting children." It's about retaliation against Scott Wells for something.

To understand the absurdity of that 15-year offer, consider this post where a defendant got five years:

Anonymous said...

Its my understanding that the first time Wells was accused of sodomy and other sexual acts against (4) young girls (including his own daughters), he was given a new trial AFTER being found guilty. Am I correct that it was going to be retried because of Ineffective Counsel...aka David Schuler? Then, according to online docket and court records, he took and Alfred Plea to child endangerment and agreed to those terms via his attorney. Alfred Plea is NOT the same as an overturned conviction, and its just vety odd that these charges also pertain to crimes against children. Why would any innocent man accused of such horrific acts, agree to any kind of an Alford Plea? Maybe, just maybe your so set on making your brother look bad that your defending a guilty man..and thank you for bringing his first case to foreground! We had not known if you had not posted about it

legalschnauzer said...

@12:11 --

You are off target on several issues:

(1) Yes, Wells originally was found guilty, but the conviction was overturned when one of the accusing witnesses was found to have lied under oath.

(2) That led to the court, not me, finding David Shuler provided ineffective assistance of counsel.

(3) As for the Alford plea, your point cuts both ways. Wells reluctantly (I'm told) agreed to the Alford plea on his attorney's advice because of the many risks of going to trial. The state also agreed to the Alford plea, likely to save face after its case fell apart due to unreliable witnesses.

(4) No one said an Alford plea is the same thing as an overturned conviction. In the Wells state case, both occurred -- first, the overturned conviction and granting of a new trial; second, the Alford plea.

(5) You should research an Alford plea because you don't seem to understand what it is. It essentially is a tool to resolve the matter -- with the prosecution saving face for a faltering case, and the accused not pleading guilty to anything. There is nothing in the record, even from the prosecution, to indicate Scott Wells endangered a child.

(6) Why would an innocent man agree to an Alford plea? For one, his attorney -- whom he had paid about $80,000 -- recommended it. Two, even the most innocent man cannot control what a jury decides.

(7) If you want to learn more about David Shuler's handling of the Wells defense in the first case, I would invite you to read his deposition testimony in the legal-malpractice case. It has been published here, and it's pretty embarrassing. If you do read it, I would encourage you to then ask, "Would I want this guy for my attorney?"

legalschnauzer said...

You can read about David Shuler's deposition testimony here:

and here:

Anonymous said...

What exactly were the risks of going to trial again if all of these other things were stacking up in his favor from the first trial? I would think if there was evidence of a lying witness, and incompetent attorney, that could be produced at the 2nd trial and that would be helpful in the case and would go to Wells favor. You even said there was NOTHING to even suggest child endangerment, yet by taking an Alfred Plea, he says himself that there is enough evidence to convict. If there is absolutely NO evidence to prove guilt, I would take my chances with a jury as opposed to taking any kind of a plea and the lying witness would go to Wells favor.
Ive read through the entire case from 2017 (that you so graciously provided) and the photographic evidence that Wells is accused of being involved with are very disturbing, disgusting and sick images of small children, and yet (according to your posts) Wells claims he "thought" the child was 19? Why would he feel the need to "warn" her daughter by sending her the photo and how did he know how to find her daughter on social media?? How did he even know her name if he wasnt even sure of her age? How do you confuse an infant/toddler with a 19 year old? Common sense things!
According to you, both his attorneys, the prosecutor from his first case...all 3 attorneys, the judge, the prosecutor AND the entire grand jury in this second case are all conspiring against some point we need to consider that there is a possibility of guilt. I get it, people are wrongfully accused, but Im having a hard time digesting that EVERYONE involved is corrupt, even the tipster is involved right? You have contradicted yourself many times, but unfortunately those posts have been taken down...assumingly by you, so I cannot prove things you have claimed. Your also claiming an almost blind man in a wheelchair cannot dangerous, but Im assuming Wells was not always in a wheelchair. His vision was good enough and didnt interfere with getting online getting wrapped up in some shady stuff and THAT in itself does make him a danger. Your admitted hatred for your brother is blinding you from some serious possibilities of guilt...besides the prosecutor has to prove guilt. Maybe the evidence will speak for itself...but if he is convicted, you will claim ALL the jury members are paid off too right? Come on!

legalschnauzer said...

@10:05 --

A few points:

(1) Why don't you call Daniel Dodson, the Jefferson City lawyer who represented Wells at the time and ask him about the dangers of trial and shy he recommended his client accept an Alford plea?

(2) Taking an Alford plea does not say there is enough evidence to convict. There is no evidence of child endangerment at all. I would suggest you go to the Greene County Courthouse and read Daniel Dodson's deposition in the Wells v. Shuler legal malpractice case. I've reported on some of the deposition here and will be reporting more in future posts. He explains the Alford plea and why he recommended it for Scott Wells.

(3) What photographic evidence have you seen, and how did you see it? Are you saying the photographic evidence of alleged child pornography is publicly available? How do you know these were "small children." The criminal complaint, which is public, gives no ages. Again, how did you manage to see these images?

(4) You claim to know the Facebook image was a toddler. How do you know that?

(5) Where have I said all of these people are conspiring against Wells? I've said their rulings and actions, based on the facts and law, are incorrect. But I don't recall saying they are conspiring with each other -- although it's possible they are, but I don't know that.

(6) Cite where I have contradicted myself and note any posts on the Wells case I've removed. The evidence is becoming clear that you are a liar and a phony.

(7) I didn't say Wells has no vision. I said he is almost blind in one eye, which is true, and he's dealt with a benign brain tumor since childhood, which is true.

(8) Hatred for my brother, paying off jury members? Where have I ever written about any of that. Starting to think you are dealing with a few loose shingles, and you seem to specialize in putting words in the mouths of others.