Wednesday, February 5, 2020

Court records show Scott Wells' Alford plea in 2004 case was a compromise, to allegations that were not even made against him -- and he passed a polygraph test that pointed to his truthfulness in that matter

Scott J. Wells
U.S. prosecutor James Kelleher has stated in court several times that Missouri resident Scott J. Wells should be detained on child-pornography charges because he was convicted in 2004 on state child sexual-abuse charges and later "pleaded guilty" to a reduced charge of child endangerment, which makes Wells subject to detention as a violent person, a "danger to society."

Kelleher most recently made such a statement at a hearing where U.S. District Judge Doug Harpool allowed Wells to withdraw a guilty plea on the child-porn charges and rid himself of attorney Brady Musgrave, who pressured him into the plea. Harpool set a trial date for March 2020 and kept Wells in detention -- where he has been for almost three years -- apparently based on Kelleher's open-court statements.

That raises this question: Are Kelleher's statements accurate and complete? The answer: not exactly. Kelleher tends to leave out key facts: (1) Wells' conviction in the 2004 state case was overturned because a court found his attorney (David Shuler, my brother) provided ineffective assistance of counsel and a complaining witness was found to have lied under oath about the presence of scars on Wells' penis; (2) Wells did not plead guilty to the child-endangerment charges, which are misdemeanors, and there is nothing in the record to indicate he acted violently toward anyone. Also, we can find nothing in the record where Kelleher cites statutory authority that a plea to state child-endangerment charges makes one "violent," as a matter of law, in a later federal matter. The key issue here is that Wells entered an Alford plea in the 2004 case, which we have described as follows:

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 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.

Notice the section above that is highlighted in yellow. It shows that, under an Alford plea, an accused does not admit to the unlawful act and asserts his innocence; in other words, it is not a guilty plea. That Kelleher consistently has misstated the nature of Wells' plea in the 2004 case raises this question: Do Kelleher's statements, made by an officer of the court in official proceedings, amount to fraud on the court, possibly rendering subsequent rulings void? Our research indicates the answer is yes.

Daniel Dodson
The public rarely hears about an Alford plea, and even lawyers and judges don't seem to fully understand what it means. The best explanation we've found comes from a deposition of Jefferson City, MO, attorney Daniel Dodson, who served as an expert witness in Scott Wells' legal-malpractice lawsuit against David Shuler. A transcript of the deposition -- with Shuler's attorney, Scott Bellm, providing the questioning -- is embedded in two volumes at the end of this post. Here is a key section about the Alford plea, where Dodson says there was no factual basis to support child endangerment charges against Wells (from page 158, vol. 2):

Bellm: What was the basis that the prosecutor gave to the judge, the factual basis for the charges? 
Dodson: You don't have to on a misdemeanor. 
Bellm: And so none was given? 
Dodson: No, I mean, there was none there. 
Bellm: Well,, tell me, since maybe --  
Dodson: I don't remember what the charge was called, but it had to do with abuse of a child or physical abuse, spanking, something -- you know, there were never any allegations of the sort.

So, Scott Wells pleaded to allegations that were not even made against him. That probably sounds crazy to the general public, but it's how an Alford plea works. It's all about the prosecution saving face, and the defendant avoiding the risks of a jury trial, which involves the very real possibility of being convicted on a much more serious offense (with five life sentences as punishment, in this case) that he did not commit. Here is more from the Dodson deposition:

Bellm: . . . do you recall what you said (in court) at the time? 
Dodson: Sure. It's like, Judge, I want the record to be clear here that my client was accused of these things, that there were all kinds of holes [in the prosecution's case], that he's passed a polygraph test, that he had poor counsel, that he should have been acquitted at trial, that there was this penis evidence . . .  
Like . . . , I want you to know that the only reason we're pleading to this is because our defense has been compromised by the mistakes that were made before, and that there have not even been the slightest allegations that he's charged with in these charges that he's pleading guilty to, and that this is an Alford plea in the purest sense, in that there's never been anything offered by anybody to indicate that Scott Wells did what he's accused of, that he's pleading guilty to here today. This is purely a compromise because of the position his previous counsel (David Shuler) put us in. And that he maintains that he is not guilty of anything whatsoever. 
I mean, yeah, I laid it on thick, I can tell you. . . .

Notice the green highlighted area above that references a polygraph test that Scott Wells took, and passed, in the 2004 case. Dodson arranged for that test to be taken after David Shuler had made no effort to seek the services of either a polygrapher or any other kind of expert. Further notice, also in green, that even Dodson mistakenly says his client was "pleading guilty" to child endangerment. As a matter of law, someone making an Alford plea does not admit to anything, and in fact, maintains his innocence.

A polygraph test presents a number of complicated legal issues, but Dodson says in his deposition that it was critical to turning around the 2004 case against Scott Wells. We are guessing that the results also could be used to help get the current federal charges dismissed -- if Wells ever could find an attorney to actually represent him aggressively and competently.

More on the polygraph issue in an upcoming post.

(To be continued)

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