Tuesday, August 6, 2019

Statements from U.S. prosecutor James Kelleher and judge David Rush indicate Scott J. Wells has been detained due to state conviction that was overturned

David P. Rush
Court documents show Missouri resident Scott J. Wells has been detained for more than two years on child-pornography charges because of  statements from a prosecutor and the judge that range from incomplete to deceptive to downright false.

Could the statements, made by officers of the court in official proceedings, amount to fraud on the court, possibly rendering subsequent rulings void? Our research indicates the answer is yes.

In fact, it appears Wells has been held largely based on his 2004 conviction in a child sexual-abuse case. That conviction, however, was overturned due to the court's finding that my brother, David Shuler, provided ineffective assistance of counsel as Wells' defense attorney. How flimsy were those state charges against Wells, and what impact have they had on the pending federal case? From a post dated January 30, 2019:

Chief prosecutor James J. Kelleher apparently pushed for detention (in the federal case) 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

The 2004 state case ended when Wells entered an Alford plea to child endangerment. Here is how we described that outcome in an earlier post:

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 plea that allows the prosecution to save face for bringing a weak case, and it allows the defendant to avoid the uncertainty of a jury trial. 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.

We know the highlighted section in yellow above was on target because we now have transcripts of two key hearings in the federal case. (Both transcripts are embedded at the end of this post.) The first proceeding in question involved a probable-cause and detention hearing on March 31, 2017.The second proceeding involved a status conference on February 6, 2019, focusing primarily on the exit of Shane Cantin, Wels' second court-appointed attorney in the case.

Together, the transcripts show Kelleher pushed for detention, and Judge David P. Rush granted it, based on the state case that ended in 2004. Neither officer of the court mentions during oral argument that Wells' conviction in that case was overturned -- and no document related to his Alford plea indicates he actually endangered a child. If anything, children (in the general age range of 10-12) endangered Wells by lying under oath in court. Let's consider prosecutor Kelleher's statements from the transcript of the probable cause/detention hearing:

The complaint obviously sets forth the facts supporting Mr. Wells' most recent involvement with child exploitation. There is also reference to the fact that back in 2004, he was convicted of sexual misconduct, statutory sodomy, incest, and child molestation in Circuit Court of Greene County. I am, of course, aware of that conviction, as I was the prosecutor who handled that -- that trial. It's frankly unbelievable that he is back before this court after being given the break that he was in relation to that case. The fact that he admitted that child pornography popped up on his computer is, obviously, ludicrous. The evidence in this case is overwhelming. The defendant's pleas to child endangerment, as well as the most recent conduct, clearly mark him as a danger to society. And consequently, Your Honor, I respectfully suggest to the Court that pretrial detention in this matter is appropriate.

There you have it: Kelleher clearly bases his call for detention on a 2004 conviction that was overturned -- and Kelleher conveniently fails to mention that to the court. Kelleher also fails to mention that Wells' plea to child endangerment was an Alford plea, with no indication in the court record that Wells actually endangered anyone.

U.S. public defender David Mercer, Wells' court-appointed attorney at the time, made no written argument to Kelleher's motion, but he did offer this pearl in oral argument: "Your Honor, on the issue of probable cause, we have nothing to add." So, Mercer is admitting there is probable cause to arrest Wells and search his home, even though the criminal complaint alleges Wells uploaded two separate computer files at the exact same time (down to the second), which cannot physically be done. In short, there is no probable cause in this case, but Scott Wells' own lawyer admitted there was more than two years ago. That's the kind of "defense" you get with a court-appointed lawyer.

Mercer obviously did not read the criminal complaint closely, and neither have Kelleher nor Rush. As for Rush, he was anxious to rubber stamp anything Kelleher wanted. From the judge:

I will find probable cause and order the matter held for Grand Jury or other appropriate proceedings. With regard to the detention portion, I concur . . . that he's not a flight risk. And I also concur . . . and intend to find, by clear and convincing evidence, that he is a danger to the community, and I will issue a written order with that finding and the reasons in support of that.

Rush's detention order (embedded at the end of this post) is based almost entirely on the 2004 case, where Wells was charged with sex offenses involving children -- and Rush makes no mention that the conviction was overturned, and Wells was the victim of under-age accusers who lied under oath and a defense attorney (David Shuler), who the court found provided ineffective assistance of counsel. In other words, Rush's "clear and convincing evidence" means you can be held behind bars for more than two years because the government charges you with something, even though they failed to prove you actually did it.

Scott J. Wells
As for the February 6, 2019, status conference, that dealt with Wells' pro se motion to have Shane Cantin removed as his court-appointed lawyer -- plus Cantin's own motion to withdraw. That prompted a soliloquy from Rush, portraying Cantin as a paragon of legal virtue. From the transcript:

Mr. Wells, I would first tell you, you don't get to fire an attorney you didn't hire. And I'm going to make some inquiries of you as to what your complaints are, and we'll attempt to address some of those complaints. I would also tell you Mr. Cantin is . . . probably one of the finest criminal defense attorneys in southwest Missouri. If you were to hire him, I don't know that you could afford him. That's how good he is. And I'm going to take up your request, and in the end, I'm likely to appoint you new counsel. You won't get anybody . . . better than him. He is well respected by the Court. He's well respected by the judges in the Western District of Missouri . . . . This court has found very few defendants that have had difficulty getting along with him. . . . So I would say be careful what you ask for because you're not going to find a finer criminal defense attorney in this area.

That Rush considers Cantin to be an excellent attorney -- and that Cantin generally is respected by judges and other defendants -- says nothing about his performance in defending Scott Wells. The transcript makes clear that Rush's real concern is that Cantin's letter to Wells (while the accused was detained at the CCA in Leavenworth, Kansas) became public. Cantin's letter, stated his own client had no defense to the charges against him and he surely would be convicted -- . shockingly, Wells and his family took offense to that letter and sought to have Cantin removed from the case.

As for Wells' complaints regarding Cantin's "defense," they generally come under three headings:

(1) Cantin had done nothing to get Wells' removed from detention or even moved from the facility in Leavenworth;

(2) Cantin had done virtually nothing on discovery -- going over the government's evidence with his client, taking depositions, etc.

(3) Cantin had not sought expert witnesses, which often are critical in the defense of child-porn cases.

Here is how Rush addressed Wells' concerns. From the transcript:

Court: If you're wanting copies of the alleged child pornography, that is not allowed, so tell me what has not been provided to you? 
Wells: I just have been informed, I mean, by other people that I should have got at least a copy of the discovery. I have been informed at different times that things have happened. I just had a lot of questions about it. . . . 
Court: Again, you're in federal court, and you don't have a right to depositions. So, there's nothing Mr. Cantin can do. If your complaint is he hasn't taken depositions, he's not allowed to. Your last two are contacting experts or filing motions as to bond. Your attorney is not required to file what he determines to be frivolous or non-meritorious motions. You have no right to an attorney who will docilely do as told. He is to apply his legal knowledge and experience and training. And filing frivolous or non-meritorious motions . . . doesn't rise to the level of him not providing you adequate representation . . .
And so, I don't know what motions . . . I guess it's to bond. I mean, he can file a motion for reconsideration of bond, but if he believes . . . it will not be granted, he's not required to do everything you tell him to do.

Did Rush speak the absolute truth to Scott Wells? Not exactly. Here are places where the judge went  off the tracks:

* Rush's claim that depositions are not allowed in federal criminal cases is plainly false. A quick look at Rule 15 of the Federal Rules of Criminal Procedure makes that clear. Why would Rush lie to a party about this issue? I don't know, but it's troubling.

* Rush's claim that Wells is not entitled to a "copy" of alleged child pornography is, at best, deceitful. First, it's not clear Wells asked for a copy of any child pornography, and such a copy -- if taken outside a secure government location -- would, in fact, be improper under the law. However, Wells absolutely is entitled to review every piece of evidence -- including images of child pornography -- that the government intends to use against him, per 18 U.S.C. § 3509(m), as outlined at this article.

* There is no evidence in the record that Wells asked his attorney to file a frivolous or non-meritorious motion. As we have shown in multiple posts, any of the following motions -- to dismiss for a deficient criminal complaint, to dismiss for a deficient indictment, to overturn detention for lack of probable cause, to suppress evidence as gathered in violation of the Fourth Amendment -- all would be meritorious. If Cantin and Rush are not aware of that, they haven't read the case file.

As for Cantin, even he seems to indicate he didn't do all that much on Wells' case. From the transcript:

Cantin: Well, when we still had the trial set several months away. I made a trip to CCA and took all the discovery with me and met with him for a couple of hours there at that time. Since he came back down here for . . . this docket, we had several weeks in which to prepare for a one-count indictment, and I've spent five or six hours at the Greene County Jail attempting to go through discovery and review electronic information and answer all his questions and get ready for trial.

Note that Cantin says he took discovery with him to the CCA in Leavenworth, but he doesn't say he reviewed it with Wells. Also, Cantin says he "attempted" to go through discovery at the Greene County (MO) Jail, but does not say he actually accomplished that. Since the law would not allow Cantin to take images of alleged child pornography outside a secure prosecution site, that likely means he never reviewed image evidence with his client at all.

That suggests Scott Wells' concerns about discovery are legitimate. That Judge Rush and Prosecutor Kelleher twisted the truth, or eliminated key details, in open-court statements suggests Scott Wells is being railroaded.

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