Tuesday, January 14, 2020

Missouri resident Scott J. Wells withdraws guilty plea in child-pornography case and rids himself of lawyer Brady Musgrave, who pressured him to make the plea

Scott J. Wells

A Missouri man who has been detained for almost three years on baseless child-pornography charges went into a recent federal hearing hoping to: (a) withdraw a guilty plea; (b) get rid of the court-appointed attorney who pressured him into the plea; (c) receive another court-appointed attorney (his fourth), hopefully one with at least a smidgen of integrity; and (d) be released from detention. Scott Wells accomplished items (a), (b), and (c), while failing (so far) only on item (d), court records show.

Based on what I've seen of federal court hearings, winning on three of four issues is a pretty strong outcome -- especially when your compromised previous attorney still is trying to get you to plead guilty, right up to the last moment, and you remain detained (it appears) largely because of statements from the prosecutor that are false, incomplete, or both.

Scott J. Wells, of Springfield, hardly is out of the woods in the child-porn case. But he is rid of the guilty plea that attorney Brady Musgrave pressured him into filing, he has appeared for the first time before U.S. District Judge Doug Harpool (as opposed to U.S. Magistrate David P. Rush, who royally has screwed up this case), and he has multiple grounds for a new attorney, Stuart P. Huffman of Whiteaker Wilson, to get the charges dismissed -- if Huffman, unlike previous court appointees Musgrave, Shane Cantin, and David Mercer, will fulfill the duty he is sworn to uphold.

A trial date is set for March 16, 2020, but well before then, Huffman should file documents to get the charges dismissed on at least three grounds: (1) The criminal complaint is deficient because it alleges that Wells committed offenses that are physically impossible to commit; (2) The indictment is deficient because it only copies statutory language and fails to cite any "particulars" re: offenses Wells supposedly committed; and (3) A search of Wells' home was conducted without probable cause, meaning evidence should be suppressed as unlawfully obtained.

Here were some of the key moments in the most recent hearing:

(1) Even a reputable judge makes goofy comments from the bench --  Doug Harpool should be a far better judge in the Wells case than magistrate David Rush, who pressed his lips against the prosecution's butt at every opportunity. Barack Obama appointed Harpool, a Democrat, to the federal bench in 2014, and I know enough about Harpool to believe he can be a fair and competent judge. [Full disclosure: I have known Harpool for years; we went to junior high school together, played on the same basketball team at South Kickapoo Junior High (now Cherokee Middle School) and played on the same youth baseball team (Dave's Angels) for one year. I've always liked Doug and considered him a good guy and would be very surprised and disappointed if he did not see U.S. v. Scott J. Wells for the garbage that it is and dismiss it. Still, Harpool reportedly made some statements in court that I find goofy and disturbing:

(a) He accused Wells of "wasting taxpayer dollars" by using four court-appointed attorneys -- Wells not only is entitled to an attorney, he is entitled to a vigorous and competent defense. His first three lawyers did nothing to defend him, and it remains to be seen if Stuart Huffman will break that mold. He's had plenty of time to file dismissal documents, and he apparently has not done it. If anyone is wasting taxpayer dollars it is prosecutor James J. Kelleher who brought charges without a whiff of probable cause.

Doug Harpool
(b) He said Wells has been detained "because that's what usually happens in these cases" -- That is a sorry-ass answer. We don't hold people behind bars in this country because that has happened to someone else facing similar charges. We only do it if the facts and law say the accused should be detained. Rush never conducted a serious inquiry on the detention issue, apparently buying prosecutor James Kelleher's every argument, which were not necessarily in line with reality. Court documents indicate Wells was detained largely based on his state conviction in a 2004 child sexual-abuse case. But the federal court seems to conveniently ignore that the state court overturned that conviction based on ineffective assistance of counsel from my brother, David Shuler, and a finding that at least one accusing witness had testified falsely under oath about the presence of scars on Wells' penis. Harpool should vacate Rush's ruling and conduct a new hearing on the issue.

(c) Harpool reminds Wells that he faces "serious charges" -- Actually the charges are not serious, and Harpool would know that if he read the criminal complaint closely. It alleges that Wells engaged in misconduct that is physically impossible to commit. It's in the complaint, in black and white. Huffman, Scott Wells' new attorney, needs to bring that to the court's attention ASAP and get the charges dismissed.

(2) Prosecutor James Kelleher makes false or incomplete statements to the court to justify Scott Wells' unlawful detention -- According to Wells' family members, Kelleher told Harpool that Wells should remain detained because, after his sexual abuse conviction was overturned, he pleaded guilty to child endangerment in the 2004 -- and, as a matter of law, that makes Wells a "danger to society." This appears to be a repeat of Kelleher's argument before Rush, upon which we reported earlier -- complete with transcripts of the proceedings. Here, from one transcript, is what Kelleher argued before Rush, in March 2017:

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.

Here is our analysis of Kelleher's statement, pointing out its serious flaws:

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.

Here is how we described the Alford plea in the Wells case, an issue the prosecution generally has tried to avoid in the federal matter -- and that probably is because it blows their case for detention to kingdom come:

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.

We have more details about the Wells' Alford plea, what it actually involved, and that is coming in a future post.

(3) Why was Brady Musgrave desperate to have Scott Wells maintain his guilty plea? -- Right up until the moment Harpool allowed Wells to withdraw his guilty plea, Musgrave was pressuring Wells to keep the guilty plea in place, according to family members. Was this an act of desperation on Musgrave's part, and if so, why was he so invested in a guilty plea?

In fact, family members state that, after Harpool granted withdrawal of the guilty plea, Kelleher and Musgrave stomped out of court, one after the other. What were they pissed off about? Had someone promised one or both of them handsome compensation if they could make a guilty plea stick against Scott Wells? Did at least one of them see dollar signs floating out the window when Wells' guilty plea was withdrawn?

Sources tell us that Kelleher comes from a moneyed background and likely doesn't need any additions to his cash flow. But public documents show Brady Musgrave is enmeshed in financial turmoil and certainly could use help (along with his wife and law partner) on debt issues. Was Musgrave hoping for a financial boost from the Wells case, and who would have provided it? We don't have a clear answer to that question. But we do know Musgrave and his associates have financial problems, proving that not all attorneys are rolling in big bucks.

More details on Brady Musgrave's financial struggles in upcoming posts.

(To be continued)

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