Wednesday, February 26, 2020

Expert witness: Missouri lawyer David Shuler lacked the skills and mindset to defend a child sexual-abuse case -- committing malpractice of "staggering" scope

David Shuler
A Missouri attorney had neither the experience, the skill set, nor the temperament to take on the criminal defense in a complex case of alleged child sexual abuse, according to an expert witness in a subsequent legal-malpractice lawsuit. Scott J. Wells, the defendant in the original sex-abuse case wound up with convictions in 2004 -- carrying likely five life sentences as punishment -- although records show four complaining witnesses told wildly inconsistent stories, with at least one caught lying under oath about the alleged presence of scars on Wells' penis.

Wells paid roughly $65,000 to bring Jefferson City lawyer Daniel Dodson into the case, and he managed to bring the result down to misdemeanor Alford pleas to child endangerment, which involved no appearance on a sex-offender registry, no time behind bars, and not even an allegation in the record that Wells actually endangered anyone, much less that he sexually abused anyone.

Dodson became an expert witness in Wells' legal-malpractice lawsuit against his original attorney, David Shuler of Springfield (my brother), and Dodson called Shuler's level of malpractice "staggering." We know from experience that it is rare to hear that kind of brutal critique from one lawyer about another.

So, how poor was David Shuler's performance in the sex-abuse case? Dodson says Shuler simply was not capable of handling the case and put his client in an awful fix. Here is how Dodson put it in a deposition for the legal-malpractice case, with Shuler's lawyer, Scott Bellm, doing the questioning:

Bellm: Okay. At what point did you change your approach from focusing on keeping the sentencing -- or the punishment phase down -- 
Dodson: Yeah. 
Bellm: -- versus a motion for new trial based on ineffective assistance of counsel?
Dodson: Well, I already had some pretty good indication from Scott that Shuler just really wasn't -- frankly, just wasn't capable of taking on a case like this and doing it. There's just a certain skill level that comes with it. I mean, this is not a routine burglary, where your client's been caught red-handed or has confessed or something; this is the equivalent of brain surgery, and it wold be like a general practitioner taking someone in to perform brain surgery. I knew that from talking to Scott. 
When I read the deposition, I would see such things as Shuler going in and not really even knowing which complaining witness he was talking to, in terms of the facts. And I think I had also gathered some information that Shuler had some personal issues with a sick child or something. But I was fairly clear in my mind that Scott had not been well represented, after reviewing, you know, some portion of the file. 

Shuler was incapable of handling the case, and he failed to take steps to educate himself about such cases, to make himself at least minimally capable, Dodson says:

Dodson: . . . the closest comparison would be a death-penalty case. I mean, I haven't done a death-penalty case, but if I were to take one on and not get some help from lawyers who have done them before, I think I would be committing malpractice, unless I won. 
Bellm: So it's -- in order to adequately defend Mr. Wells in this case, it would not have been enough for him to use someone with an ordinary skill level, learning experience, training; he would need someone who was, in fact, extraordinary? 
Dodson: No, he would need someone who had taken on the responsibility of learning what you need to learn to do a child sex-abuse case. . . . I'm sure you have noticed that there are several authors I mentioned who write books on how to determine if a child's telling the truth or to give the trier of fact indicators as to whether or not a child's telling the truth. . . .  
Ordinary . . . you can't do a case like this without having to delve into some of the things you need to learn to do this particular type of case. I don't consider that extraordinary. A journeyman criminal defense lawyer who's learned to do child sex cases has looked into these things that Shuler hadn't looked into. 
Bellm: Okay, All right. He needed a different skill level, skill set, training, and learning to be able to adequately defend Scott? 
Dodson: That -- I was noting this in the transcript, and I remember this-- I mean, he was essentially a plea-bargain lawyer. He was an ex-prosecutor who took some criminal cases because he knew a little bit about them. But he hadn't done a jury trial since he had left the prosecutor's office, hadn't tried a felony since he had left the prosecutor's office, and this, frankly, isn't the type of case to cut your teeth on. 
Bellm: Should have referred him? 
Dodson: Yeah, he should have said, "I don't have what it takes to represent you in this case." I -- that's -- it may happen a lot, but it's sad because Scott Wells almost went to prison on this.

Dodson disagreed with Shuler's strategy to waive a jury trial and have the case heard by a judge only. In fact, Bellm states that Shuler's contract with Wells limited the scope of the representation to a non-jury trial. Dodson said he considered that an improper contract because Wells might have been better off before a jury, but the contract took that option off the table.

Bellm: Can we agree that it was not . . . necessarily a breach of the standard of care for him to waive the jury? 
Dodson: I think that's probably true. Yeah, I don't think it was a breach. I think it was probably a bad judgment call in this case, but it was --  
Bellm: Not negligent? 
Dodson: No, I think it was a trial strategy -- a trial strategy borne of not knowing anything about doing these cases and generally having a make-up -- Mr. Shuler's make-up -- he's probably still not tried a jury trial and may never do it. He's not a jury-trial lawyer. 
Bellm: In any event, even if he had not waived jury and they would have had a jury trial. there's no way in the world anybody . . . could ever predict one way or the other what the outcome would have been? 
Dodson: With David Shuler as his lawyer, I can predict what the outcome -- . . .  In this case, I think it was rather obvious that Scott Wells wasn't guilty, and that there were so many holes and so many problems, and then the stuff that came up at trial that wasn't reacted to, I think the case was a winner. 

Members of the Wells family told Dodson that the facts of the case, as presented by the prosecution, were nonsensical:

Dodson: They were always, of course, adamant, you know, Scott -- this is preposterous. Some of the things that came up, I mean, the allegations of what supposedly went on in a tiny little apartment with other people nearby were just, frankly, absurd, and that's one of the many things that didn't get pointed out in trial. And that's part of what they were communicating to me is that, you know, this stuff -- this is obviously not true. trying to help me find a way to get that across that Shuler didn't find. 

Was David Shuler even capable of finding the numerous holes in the prosecution's case -- and exploiting them to benefit his client? Dodson suggests Shuler was way out of his element in trying to defend a felony criminal case. In fact, Dodson said Shuler failed to convince Wells and his family of the serious situation they were facing, and that significantly more money was going to be needed to keep Wells out of prison:

Dodson: And there were a ton of other things, too. I mean research on . . . how to get expert testimony and just -- I mean, ultimately, David Shuler didn't do even half of what was needed to be done to defend this case. He didn't have the expertise to do it. He, frankly, didn't have the demeanor to do it. He didn't have -- there's just a certain mindset, even swagger, that you need to defend someone in a case like this. And he's -- I mean, ultimately, he probably should have realized he shouldn't have taken this  
Bellm: Well, it's certainly not negligence for someone without the -- what you term the appropriate mindset, swagger or so forth to practice law or take a case like this, is it? 
Dodson: Given the results I see in this case, yeah, I think that was a big contributing factor. I think, ultimately, he had no business taking this case. And part of that has to do -- I mean there are some guys who are more -- I mean you're a trial lawyer. This is what you do. . . . Some lawyers are meant to do wills and real estate and are not meant to be trial lawyers. But Shuler wasn't in that position. He didn't try cases to juries for fairly obvious reasons. He wasn't the kind of guy you needed to be sending in front of a jury.

(To be continued)

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