Missouri attorney David Shuler is Exhibit A that a lawyer can claim experience in a certain practice area and still not provide remotely competent service

David Shuler

If an attorney claims in advertising or on his Web site, that he is competent in criminal defense, does that mean he really is? Not necessarily, says an expert witness in a Missouri legal-malpractice case.

According to court documents, David Shuler (my brother), of Springfield, MO, represented himself as a criminal-defense lawyer and signed up Scott J. Wells as a client in a complex child sexual-abuse case, with Wells paying $15,000 for Shuler's services, (plus some expenses added on). What did Wells get for his money and trouble? He was convicted -- even though a complaining witness was found to have lied under oath, with other witnesses telling wildly contradictory stories -- and faced more than five life sentences. Daniel Dodson, of Jefferson City, took over the case and got the convictions overturned, based largely on a court's finding that Shuler had provided ineffective assistance of counsel.

Dodson served as an expert witness in Wells' legal-malpractice case and testified at length about the lousy lawyering job Shuler had done. The record also shows that Shuler acted with a complete lack of class; Wells sent a letter asking for a refund of his money, and Shuler refused -- even though documents show he essentially admitted that he screwed up the case.

Bottom line: Just because a lawyer claims to be competent in a certain area of the law, it doesn't mean that really is the case. And David Shuler is Exhibit A on that point. Here is testimony from Daniel Dodson in a deposition for the legal-malpractice case. Shuler's lawyer, Scott Bellm, is doing the questioning:

Bellm: The first allegation [of legal malpractice] is that he did not prepare for trial, he being Mr. Shuler, did not prepare for trial or effectively assist the Plaintiff in defending himself by adequately investigating the charges and the defenses to those charges by fully and adequately interviewing witnesses against and for the accused. Let's just top with that. 

Dodson: Yeah. As I said in the transcript -- and I read through it, but I don't remember them all -- there were numerous things in the reports that were critical to bring out in terms of inconsistencies and in terms of reasons not to believe these girls that were there for [Shuler] that he did not bring out. 

There were additional witnesses, neighbors, credibility witnesses, character witnesses for Scott Wells, neighbors who would say these little girls were untruthful, they had a reputation for being untruthful around the neighborhood, that he didn't explore.

How did David Shuler fall outside the standard of care for attorneys defending a case of alleged child sexual abuse? A key factor, Dodson says, was the failure to hire an expert witness:

Bellm: We talked about he experts briefly. You say he should have endorsed who -- to be within the standard of care . . . ? 

Dodson: I think it was -- he needed to at least explore hiring an expert witness to have these recorded statements (from complaining witnesses) analyzed, just as I eventually did. 

In this particular case, I don't really think there's room for a determination to not use an expert witness, given the statements, what was in them, the prior inconsistent statements, the later inconsistent statements, the inconsistencies all throughout. I don't think there was room within the standard of care for cases like this to not, at least look into and probably hire an expert witness. 

Bellm: And if he talked to Scott about doing that, and Scott didn't want to spend the money to do it . . . ? 

Dodson: [That] needed to be in the initial conversation. "Mr. Wells, these cases require that I look into hiring an expert witness. And if I do, it's going to be several thousand dollars. And you're going to need to be in a position to come up with that money or you're going to have to give me a deposit of that money so I have it available, because otherwise, I can't represent you properly.

Dodson addressed the issue of whether Wells was entitled to a refund of the more than $15,000 he paid David Shuler, plus other possible remedies:

Bellm: Did you ever tell him or advise him to try to get get his money back from David Shuler? 

Dodson: I'm sure I told him that I think, yes, based on the finding of ineffective assistance, that Shuler would probably be wise to give you your money back. . . .  

Bellm: Did you ever advise him to report David to the Office of the Chief Disciplinary Counsel? 

Dodson: I don't believe I did. I don't -- the Chief Disciplinary Counsel and the criminal justice system are both over-rated in their ability to deal with problems, I think.

Dodson also was asked about possible damages for Scott Wells in the legal-malpractice case:

Bellm: . . . we were talking about the damages in this case. And I guess what I'm trying to find out, Mr. Dodson, is we can do the math and know what it cost Mr. Wells to hire you to finish his case. And I also understand that you're not going to give any testimony about his medical condition or medical bills or anything like that. 

Dodson: Right. 

Bellm: From an economic standpoint as to what his issues are, as occasioned by David Shuler's alleged negligent handling of his case, do you have any opinions about that? 

Dodson: Yes, I do. 

Bellm: Okay. 

Dodson: First of all, as I have said, because of the penis evidence, I think David Shuler, even David Shuler, despite all his mistakes, was in position to win it. And so the difference would be between $15,000 and the $60,000 or $65,000 that they eventually spent with me, $45,000 to $50,000. . . .  

Bellm: So the economic damages in this care are around $50,000? 

Dodson: I would say, yeah. From a legal standpoint, yeah. 

Bellm: Well, you would agree that he's certainly not entitled to get back the $15,000 he spent on -- with David Shuler and then the money he spent on you? I mean, he was going to spend something on this case? 

Dodson: Not as pure economic damages. 

Bellm: Sure. 

Dodson: I don't know if punitives are available in cases like this or not or -- or what his medical are. But in terms of the pure additional legal costs, yeah, $50,000 would be about right. Unless, I don't remember what the bondsman costs were. 

Based on Dodson's testimony, David Shuler was looking at being liable for what might be called "direct damages" of at least $50,000, plus possible medical damages (Scott Well has a benign brain tumor, is blind in one eye, and relies on assistive devices to be mobile.), damages for emotional distress, and punitive damages that could have increased the number substantially.

Also, the testimony does not address the expenses Wells incurred for being placed in the position of bringing a legal-malpractice case -- and it makes no mention of whether David Shuler carried malpractice insurance, and without it, the damages likely would have come straight out of his pocket.

As for Shuler's apparent admission that he butchered the Wells case, it can be found on page 38, Vol. 1, of the Dodson deposition. (Both volumes are embedded at the end of the post.)

Bellm: During that meeting [at Shuler's office], did he say anything to you that could be construed as an admission that his representation fell short? 

Dodson: Yeah, to some degree. Yeah, it was like, yeah, I probably should have done this differently. Yeah, I felt like he was more forthcoming in our meeting at his office than he was at trial, in terms of, yeah, maybe if I had this to do over again, I would do it differently, maybe I didn't really think this through, things to that effect. . . .

(To be continued)

Court finds Missouri lawyer David Shuler provided ineffective assistance of counsel in child-sex case that had his client, Scott J. Wells, facing five life sentences

David Shuler

A Missouri man was found guilty of child sexual abuse in 2004 and faced a likely punishment of five life sentences, plus 55 years. Legal situations do not get much more dire than that, especially when you consider that the man insisted throughout the process that he was not guilty. Still, the man appeared to have "one foot in the grave" -- as courthouse types like to say -- until something unexpected happened. A second lawyer agreed to take a look at the case, which involved a bench trial, and he found rampant inconsistencies among the testimony of four girls who were complaining witnesses. He also found that the defendant's first lawyer had committed multiple blunders that contributed to the guilty finding.

The second lawyer filed  a motion for a new trial, based on ineffective assistance of counsel. In a stunning development, the judge found evidence presented at the new-trial hearing so disturbing that he overturned his own guilty verdict and ordered a new trial.

The first defense lawyer, the one a court determined to have provided ineffective assistance of counsel, was my brother, Springfield attorney David Shuler. This is the first in a series of posts about a case styled State of Missouri v. Scott J. Wells (No. 31302CF5509). I've sought comment from David Shuler for these reports, but he has not responded. His silence, and certain actions he's taken since the trial, indicate he's not particularly bothered by his dreadful representation of Scott Wells. Perhaps that is more evidence that some individuals check their consciences at the door when they enter law school.

Tried in Greene County, MO, the Wells case provides frightening evidence of the danger that lurks around every bend in our broken "justice system." From child witnesses who have faulty memories or problems with honesty (or both), to overzealous and game-playing prosecutors, to inept lawyers . . . the system can swallow innocent people whole and ruin their lives, while nobody seems to notice.

As for Scott Wells, he's still not out of the legal woods. He filed a legal-malpractice lawsuit against David Shuler, and the case got past the dismissal and summary-judgment stages -- and to the edge of a trial -- when Wells' attorney bailed out on him, and the case was dismissed. I've had enough experience with legal-malpractice cases to know they are difficult to get to trial, much less to win. That Scott Wells v. David Shuler got to the point of formulating jury instructions suggests that Wells had a strong case. That Wells' lawyer would exit when he was on the verge of a victory -- and a 30-40 percent share of what likely would have been a substantial judgment -- smells of fishy, behind-the scenes maneuvering.

Deposition testimony of expert witness Daniel Dodson, a lawyer from Jefferson City, MO, was devastating regarding David Shuler's performance. (Parts 1 and 2 of Dodson's testimony, plus David Shuler's testimony at the new-trial hearing, are embedded at the end of this post.) Documents we are publishing here, plus others, indicate Scott Wells was in a strong position to hold a lawyer accountable for malpractice -- and that does not happen often in a system designed to protect many of its worst practitioners.

Scott Wells' legal problems hardly end with the civil malpractice matter. He currently faces federal charges, filed in March 2017, of receiving and distributing child pornography -- and is being detained at the federal prison in Leavenworth, Kansas.

Our review of the case file indicates the child-porn charges against Wells were brought with barely a whiff of probable cause. And his detention appears to run counter to federal law on the subject. Are the child-porn charges a form of payback from the legal tribe because Wells dared seek compensation from a tribe member who had performed dismally in his criminal defense? We will be examining that question in the coming weeks.

Daniel Dodson

How poor was David Shuler's representation of Scott Wells? Expert witness Daniel Dodson stated that his review of the case presented instances of malpractice that were "staggering." Here is an example from Dodson's examination of Shuler at the new-trial hearing. The testimony begins on page 57 in the third document embedded below:

Dodson: The trial, you -- you pointed out numerous differences in the testimony of the complaining witnesses or what the complaining witnesses said in their original-taped interviews, as compared to what they said in their depositions. Do you recall that?

Shuler: Correct.

Dodson: Okay. What I'm trying to get at here when -- for instance Brittanie Wells [a complaining witness], do you recall that in her taped interview, that's the subject of these transcripts, that she said her father had touched her and -- basically had touched her and exposed himself to her and tried to get her to put her mouth on his genitals. Is that the gist of what she said at that time?

Shuler: Correct.

Dodson: Okay.

Shuler: And the story kept growing as time went on.

Dodson: Okay. And then in the deposition she gives testimony indicating that he turned her over and basically entered her from behind and had intercourse with her -- .

Shuler: Correct.

Dodson: -- is that correct? Did you consider at that point asking her why there was such a complete discrepancy between what she had said in the taped interview and what she was saying now under oath?

Shuler: I realized there was a discrepancy, but I did not ask the question.

Dodson: Did you consider asking the question?

Shuler: It's been so long, I couldn't honestly tell you if I did or not. I mean -- of course, it was something obviously noticeable that she -- and honestly at that point, I didn't see a whole lot of benefit to asking that question. I still don't see a whole lot of benefit to asking that question. What I was more concerned -- I wanted to hear what she had to say, and I -- her discrepancies were important,  obviously.

Dodson: Okay. So you didn't see any benefit to pointing out to her that she'd given two different stories and, for instance, and that one of them obviously had to have been false and exploring that --

Shuler: I did not ask her that.

Dodson: -- issue with her? Did you consider asking -- asking her that question and --

Shuler:  I -- can't say one way or the other, I really can't. It's been so long ago. But -- I mean, I noticed it, but I did not ask that question.

Dodson: -- Well, did you -- looking back, do you see any potential benefit in asking that kind of question?

Shuler: Possibly.

Dodson: Okay. Could it be, as would be indicated by the Tracy Hercher [another complaining witness] transcript, that perhaps you hadn't made a recent review of the videotapes or the reports and that you were not completely aware of the --

Shuler: No. I was aware of -- that that was -- I was aware that that was new information. The from-behind penetration was new, and I was aware of that.

Dodson: All right. And so throughout the depositions, you're saying that you -- it's your testimony now that you were aware of the changes in these girls' stories, and you chose not to address them at that point, but instead, to just address those discrepancies at trial?

Shuler: Well, you'll have to address "specific." I mean, there may have been some discrepancies I did not notice. I can't say one way or the other.


(To be continued)

Missouri attorney David Shuler took no action at trial to determine if witness claim that Scott J. Wells had scars on his penis was accurate -- leaving his client with a devastating conviction for child sexual abuse

Scott J Wells

(Second in a series)

The key moment in the child sexual abuse case against Missouri resident Scott J. Wells came when one of four complaining witnesses -- all of roughly adolescent age or slightly younger -- stated at trial that Wells had scars on his penis. Records indicate Wells' defense attorney, David Shuler (my brother), of Springfield, did little or nothing in reaction to the statement -- and his client wound up being convicted, facing a likely punishment of five life sentences, plus 55 years.

The dire outlook for Scott Wells only changed when David Shuler withdrew, and a second defense attorney examined the case -- noticing a potential problem with the testimony about a scar on Wells' penis.

Daniel Dodson -- the second attorney, from Jefferson City -- saw the obvious question that David Shuler apparently did not: Was the testimony about Scott Wells' penis true, was there a way to prove it was false -- and if it was false, what implications did that have for the prosecution's case against Wells?

Is it any wonder that Scott Wells, after his criminal conviction was overturned, sued David Shuler for legal malpractice -- and the case got almost to trial stage, with the two sides formulating jury instructions, when Wells' attorney mysteriously bailed out on him?

Daniel Dodson

We will look at the circumstances that caused Scott Wells' conviction to be thrown out on a Motion for a New Trial -- due to ineffective assistance of counsel -- and how Wells appeared to be on his way to winning a legal-malpractice case against David Shuler (with a likely sizable judgment) only to have it dismissed when his attorney essentially abandoned him at the last minute.

But first, let's look at how the penis-scar issue arose during a hearing on a Motion for a New Trial. Following is testimony from Dodson's examination of David Shuler at the new-trial hearing. It begins on page 86 in the third document embedded at the end of this post. (The other documents are Part 1 and Part 2 of Dodson's testimony in the legal-malpractice case.):

Dodson: Okay. Do you recall an instance during the trial when -- when Tracy Hercher [a complaining witness] indicated that Scott Wells had shown her the scars on his penis? Do you recall that?

Shuler: I do recall that. I do recall her saying that.

Dodson: I will refer now to the trial transcript, page 58, line -- can you read lines 12 and 19?

Shuler: "You were -- he was showing me scars and stuff on his thing."

Dodson: Now, you did mention -- well, at some point, you did ask her if she's ever made that allegation before, is that not correct?

Shuler: I did, yes, that's what I recall.

Dodson: Okay. Did you consider any other ways to question her truthfulness in making that statement?

Shuler: I'm not sure I understand your --

Dodson: Did any other thoughts occur to you then, or do they occur to you now, as ways to -- I mean she just made a statement that Scott Wells has scars on his penis, in this transcript, is that correct?

Shuler: Correct.

Dodson: So anything -- did anything else occur to you or did you consider any other ways of trying to establish that that was a statement that was not true?

David Shuler

Shuler: Photographic evidence, I guess, could have been taken.

Dodson: Okay. Well, did you have -- did it -- what I want to ask: Did you ever even ask Scott Wells if he has scars on his penis?

Shuler: Yes, I did.

Dodson: So, if Scott indicates otherwise -- and so what did he tell you?

Shuler: At the table, he looked at me very surprised like he'd never heard that before; I had never heard it before.

Dodson: Okay.

Shuler: And then --

Dodson: So what did you ask him?

Shuler: I asked Scott: Do you have scars?

Dodson: And what did he say?

Shuler: He said, "No."

Dodson: And so why did you not ask him that when he was on the stand?

Shuler: I believe we did.

Dodson: The transcript will reflect --

Shuler: If we didn't, we didn't, but I thought we did.

Dodson: So if that -- if you didn't ask that question, that wouldn't have been due to trial strategy, that would have been an oversight on your part --

Shuler: Correct.

Dodson: -- is that correct?

Shuler: Correct.

Dodson: Okay. And you seem to recall that you did ask, but if the transcript reflects that you didn't ask Scott on the stand, might that be an indicator that you intended to ask Scott that question, but perhaps didn't ask him that?

Shuler: That's possible, yes.

Dodson: Okay. So it's possible you didn't even ask Scott whether he had scars on his penis --

Shuler: Sure.

Dodson: -- at trial?

Shuler: I thought that we did, perhaps we did not, perhaps I did not.


(To be continued)


Previously in the series:

* Court finds Missouri lawyer David Shuler provided ineffective assistance of counsel (11/13/18)

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)

David Shuler, unable to react to false testimony that Scott J. Wells had scars on his penis, handed his client a guilty verdict and a possible five life sentences

Daniel Dodson

(Third in a series)

Public records indicate Missouri resident Scott J. Wells paid Springfield attorney David Shuler (my brother) about $17,000, plus expenses, to defend him in a child sexual abuse case. What did Wells get for his expenditure? He got a guilty verdict -- so flimsy it later fell apart before the same judge who found Wells guilty -- and was looking at five life sentences, plus 55 years. It all could have been avoided if David Shuler had thought to ask one obvious question. But Wells had to hire another lawyer, to the tune of about $60,000, to get David Shuler's "handiwork" cleaned up and the verdict overturned, due to ineffective assistance of counsel.

State of Missouri v. Scott J. Wells (No. 31302CF5509) is a horrifying story of what can happen in our "justice system" when four little girls accuse a man of sexually abusing them, it goes to trial even though their stories are repeatedly changing in discovery, a judge issues a guilty verdict -- and that collapses only when, in a post-trial hearing, one of the complaining witnesses is shown to have clearly lied. The lie had been obvious at trial, but David Shuler was too incompetent, too indifferent, too compromised (or a combination of all three) to ask the question that would have set his client free.

After the guilty verdict had been tossed, Wells asked Shuler in writing to return his money; after all,  the court had found Shuler's representation fell to the level of ineffective assistance of counsel, but Shuler refused. He kept roughly $20,000 for "services" that left his client staring at five life sentences (and then some) -- for a crime he did not commit.

In preparation for this series of posts, I sent David Shuler an email asking why he had refused to return Scott Wells' money. We've shown that Mr. Shuler owns more than $1 million in Missouri real estate, so it doesn't appear he would miss the money Scott Wells paid him -- and which Shuler definitely did not earn. But David Shuler has not responded to my queries. (More on the subject of Shuler's fees in an upcoming post.)

Daniel Dodson, the Jefferson City attorney who got the Scott Wells guilty verdict overturned, served as an expert witness for Wells in his legal-malpractice claim against Shuler. At one point, Dodson describes the level of malpractice in the underlying criminal case as "staggering." Below is testimony from Daniel Dodson's deposition in the malpractice case, and as you will see, Dodson does not mince words about David Shuler's performance. The testimony begins on page 42 of the first document embedded at the end of this post. The questioner is Scott E. Bellm, from the Turner Reid Duncan firm of Springfield, representing David Shuler:

Bellm: Can we agree that it was not -- maybe in hindsight, things might have been done different, but it was not necessarily a breach of the standard of care for him to waive the jury [trial]. . . .

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 in this room or anywhere else 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 --

Bellm: Or with anybody?

Dodson: I can predict what the outcome would have been in this case with proper preparation -- there was so much -- I had forgotten half of what came up in that transcript, and I didn't get to half of my witnesses that came up. 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 in trial that wasn't reacted to, I think the case was a winner.

Bellm: You believe, as you sit here today, that had a different lawyer with different skill sets, different preparation, if that lawyer would have tried this case in Greene County back in August of --

Dodson: 2004.

Bellm: -- four, in front of a jury of unknown people, that you can say with any degree of certainty that there would have been an acquittal of all 14 charges?

Dodson: There may not be certainty in this business, but I can tell you that I believe there would have been an acquittal in front of a jury or in front of Judge [Don] Burrell.

Bellm: If all -- of all charges?

David Shuler

Dodson: If it had been properly prepared, yes, absolutely. I think when we stopped the [new trial] hearing for a pause, and Burrell called us back eventually into chambers and said, I have heard enough, and I do think, ultimately, based on what he said -- and I tried to appeal it, but it just -- it wasn't right for appeal, I think, ultimately, if we had gone back to trial, having been compromised by Shuler's representation, having had all of my potential trial strategies exposed in that hearing, there was a possibility we could have lost, and that's why we compromised out {settled] the case.

But I think eventually we would have won on appeal, because I think what I think Judge Burrell did was, as the trier of fact, find that he had a doubt about his own verdict beyond a reasonable doubt. And I think eventually there would have been an acquittal, based on the fact that the original trier of fact set aside his own finding of guilt. I think it would have.

Bellm: And in all fairness, Judge Burrell had the benefit of hearing evidence that you understand, likely, probably would not have been admitted at trial?

Dodson: He did, but I don't think he considered it. I think he considered -- and I think, you know, the crux of this case is the scars on the penis evidence, and that is what did it. Based on what he said in chambers, he said, when I heard that and heard that she said he had scars on his penis for the first time and that -- and he didn't even have the fact that Shuler didn't remember, but Scott will tell you that Shuler didn't even ask.

Part of defending a case like this is having a belief in your client, if your client says he didn't do it. And Shuler didn't have enough of a belief in his client that he had any doubt that this girl was correct about the scars on the penis and didn't even ask Scott if he had scars on his penis, and therefore, did not react and put in evidence which was, frankly, right there behind his zipper, that this young woman was completely up a tree.

Bellm: And you agree with me that the first time this testimony was ever given was during the trial?

Dodson: It was.

Bellm: And --

Dodson: But I can tell you when I got that transcript, the first thing I did -- I was at my home in Maryland -- I still lived out in the Washington, D.C., area, and I had this transcript and I saw that, and I immediately called Scott Wells and said, do you have scars on your penis?

And he said, no.

And I said, did Shuler ever ask you if you had scars on your penis?

And he said, no.

Now, that's an immediate reaction, if you're a defense lawyer, capable of defending these cases.

Bellm: And he may have asked him and he may have said no, but there is no way to know what weight or credibility the fact finder would have given that testimony?

Dodson: I'm sorry?

Bellm: If David would have asked Mr. [Wells] that question --

Dodson: He indicated he wasn't sure if he did. If David had asked Mr. Wells that question --

Scott J. Wells

Bellm: That's not my question. My question is: If David would have asked Scott Wells on the stand, in light of this new testimony during trial, he had had scars on his penis, and if Mr. Wells would have said no, then the fact finder would be free to give his testimony whatever weight and credibility that he chose appropriate?

Dodson: I don't think, especially in this case, a judge-tried case might have been better, because first of all, if the prosecutor didn't do something to refute it, you're basically in a position with a presumption of innocence and a reasonable doubt standard to take that at face value unless it's questioned. But the evidence was there.

I sent Scott to a doctor, because frankly, I didn't want to see his penis, and got a report that said he has no scars on his penis. That couldn't have been done that day. The appropriate scenario would be, judge, let's go back into chambers, my client has something he wants to show you, and the evidence would have been irrefutable at that point.

That's not a matter of just asking Scott. It's a matter of being aware of what's going on and at least asking your client to figure out that you have exculpatory evidence right there, frankly, in his pants.


(To be continued)


Previously in the series:


* Court finds Missouri lawyer David Shuler provided ineffective assistance of counsel (11/13/18)

* Missouri attorney David Shuler took no action at trial . . . (11/27/18)

Record suggests Scott J. Wells faced child sexual abuse charges because his ex wife wanted her new husband to adopt girls who became complaining witnesses

Scott J. Wells

(Fifth in a series)

How did four girls concoct stories of child sexual abuse that were so dubious a judge overturned his own guilty verdict in State of Missouri v. Scott J. Wells (No. 31302CF5509) -- a case where the defendant was the biological father of two complaining witnesses, the step-father of one, and the uncle of a fourth? The answer is not 100-percent clear, but the public record suggests the stories of abuse surfaced after Mr. Wells' ex wife, Cynthia Hedrick, informed at least two of the girls that she wanted her new husband to adopt them -- and Scott Wells refused to go along with the idea.

The record also indicates Ms. Hedrick testified falsely about the adoption plans, and Scott Wells' defense attorney -- my brother, David Shuler, of Springfield, MO -- failed to drive that point home to the trier of fact (Judge Don Burrell, who oversaw a bench trial in the case.)

What can happen to a father who refuses to turn his children over for adoption? The Scott J. Wells case -- with my brother providing what a court found to be ineffective assistance of counsel -- suggests such a father can face false allegations of child sexual abuse that bring him to the edge of ruination.

The adoption issue arises at several places in the case file, first when Wells' second attorney (Daniel Dodson, of Jefferson City, MO) sought a new-trial hearing that included testimony about David Shuler's inadequate work as a defense lawyer -- which had his client looking at a likely punishment of five life sentences, plus 55 years.

Following is testimony from Dodson's examination of David Shuler at the new-trial hearing. It begins on page 110 in the third document embedded at the end of this post. (The other documents are Part 1 and Part 2 of Dodson's testimony in the legal-malpractice case.). Dodson asks Shuler to read from a transcript of Cynthia Hedrick's testimony. We begin with Shuler's response:

Shuler: "And isn't it true that you were the one that told Brittanie [complaining witness, Brittanie Wells] that she could be adopted? You wanted your new husband to adopt her, isn't that true? Answer: "No." "Isn't it true that you would adopt her or rather that your new husband, Jeff, would adopt her?" "No." "You didn't tell them that?" "No."

Dodson: Okay. One of the things that you tried to present to the Court as a reason why these girls might be making something up would be to please their mother and her desire to have Scott step out of the picture and allow her new husband to adopt them. Is that correct?

Shuler: Correct.

Dodson: Okay. She basically shot you down at that point and denied that that was the case. Is that not correct, also?

Shuler: That's correct. she denied that, consistently, I believe.


Dodson then turns his attention to a document where Courtney Wells [another complaining witness] states that her mother (Cynthia Hedrick) wanted her new husband (Jeff Hedrick) to adopt Courtney, so that the child would not see Scott Wells again. Dodson's examination of David Shuler on this issue begins on page 112 of the third document embedded at the end of this post.

David Shuler

Dodson: Okay. Is that not an indicator that there had been some previous discussion, and she was aware that the possibility of Jeff adopting her existed?

Shuler: Brittanie?

Dodson: Courtney, in this case?

Shuler: Courtney? Okay, yes.

Dodson: Okay. So would that not have been an opportunity, had you been familiar enough with this document, to call Cindy Hedrick on her denial that she's discussed these issues with the girls by saying obviously, here Courtney knew about that. "Where would she have gotten that idea, for instance?" I believe the transcript part is questioning on Brittanie. I don't know why you didn't question on all the girls but --

Shuler: I don't -- I guess I'm not tracking your -- I don't think she -- I don't think she denied that there was ever discussion of adoption, but I guess she's saying she didn't.

Dodson: Well, you asked -- actually, this is -- isn't it true that you were the one who told Brittanie she could be adopted and then later isn't it true that you told Courtney you would adopt her and your husband would adopt her? Is this not an indicator that at least discussions had been had on that subject?

Shuler: Yes --

Dodson: And --

Shuler: -- it is.

Dodson: Somewhat of value in impeaching Cynthia Hedrick in her denial that there was any motive that could have caused some untruth on the part of the complaining witnesses?

Shuler: Somewhat, yes.


Was that the last time the adoption issue came up in the Scott Wells matter? Nope. It arose again when Wells brought a legal-malpractice case against David Shuler. At that point, Daniel Dodson was serving as an expert witness for Wells, and he had plenty to say about Shuler's failure to pursue impeachment of Cynthia Hedrick on what might have been the single most important issue in the criminal case.


(To be continued)

Previously in the series:


* Court finds Missouri lawyer David Shuler provided ineffective assistance of counsel (11/13/18)

* Missouri attorney David Shuler took no action at trial . . . (11/27/18)

* David Shuler, unable to react to false testimony that Scott J. Wells had scars on his penis . . . (12/4/18)

* Expert testifies that Missouri lawyer David Shuler did not believe in his own client . . . (12/10/18)

Expert testifies that Missouri lawyer David Shuler did not believe in his own client, leaving Scott Wells with a bogus guilty verdict and possible five life sentences

Scott J. Wells

(Fourth in a series)

Missouri resident Scott J. Wells was found guilty of child sexual abuse in 2004 -- facing a likely punishment of five life sentences, plus 55 years -- and public records indicate his attorney (my brother, David Shuler) exhibited dubious judgment and committed a litany of technical errors that left his client in a dire position. Perhaps David Shuler's most grave error was failing to react to testimony from one of four complaining witnesses that Wells had scars on his penis. A second attorney, Daniel Dodson of Jefferson City, took over the case and easily was able to prove the penis testimony was false -- leading Judge Don Burrell to overturn his own guilty verdict at a new-trial hearing.

Dodson, acting as an expert witness in Scott Wells' subsequent legal-malpractice lawsuit, said David Shuler failed to meet the standard of care required of a criminal-defense lawyer in ways that go well beyond legal and strategic blunders. In fact, Dodson said, David Shuler did not believe in his client, and that led to a bogus conviction, damaging Wells in myriad ways.

State of Missouri v. Scott J. Wells (No. 31302CF5509) shows that a prosecution's case can implode in a hurry when a defense attorney is alert enough to show that at least one key witness has produced unreliable testimony. It also shows the peril a criminal defendant can face when his own attorney -- in this case, David Shuler -- is not fighting for him.

Dodson's deposition testimony in Wells' legal-malpractie claim against David Shuler illuminates both of those issues. At one point, Dodson describes Shuler's level of malpractice in the underlying criminal case as "staggering." Below is testimony from Dodson's deposition, and it provides a rare look at one attorney's unvarnished opinions about the performance of another attorney. The testimony begins on page 91 of the first document embedded at the end of this post. The questioner is Scott E. Bellm, from the Turner Reid Duncan firm of Springfield, representing David Shuler:


Bellm: Of course, your goal at the [new trial] hearing that day was to convince the Court that -- not necessarily of Mr. Wells' innocence, but to convince the Court that there was evidence, testimony, witnesses out there that should have been used at trial, and those witnesses may very well have made a difference in the outcome. That's the standard you were operating that day, true?

Dodson: Well, that. Again, the scars on the penis evidence was the thing that could have been done right there that had to have been done. And it's hard to describe, but your focus in this case -- first of all, you have to go in with -- to present yourself, even if you don't believe it, as if I'm here to tell you, the trier of fact, that this man didn't do what he's accused of. And when something like that comes up, the penis evidence, it's obvious to me that David Shuler thought Scott Wells did it, and that, well, if she says there were scars on his penis, obviously there were scars on his penis. It didn't even occur to him to ask that question.

Bellm: Well, let's -- let me ask you this: There was just one witness who said that he had scars on his penis, right?

Dodson: That's correct.

Bellm: Which one was it?

Dodson: Off the top of my head -- it was not one -- I think it was the cousin of the stepdaughter.

Bellm: Okay.

Dodson: I don't think it was either of the natural daughters or the stepdaughter.

Bellm: So there was a total of four victims?

Dodson: Four complaining witnesses. I have a problem with the term victim, of course.

Bellm: I understand. One of them testified that he had a scar on his penis. So if what you are telling me is right, if he were able to prove, unconditionally, at trial, that that isn't true, then that would obviously impeach the credibility of one of the three complaining witnesses, true?

Dodson: One of the four, yes.

Bellm: One of the four, I'm sorry. Would not necessarily have affected the other three complaining witnesses and the felony counts relating to what he allegedly did to those three girls?

Dodson: It would not necessarily have directly affected them. But keep in mind here that there was evidence, most of it not pointed out by Shuler. First of all [complaining witness] Brittany Wells had told the same story, like, two years before or a year before and nobody believed her because she was all over the map with the allegations, her demeanor and everything said there's something wrong here and there's no great reason to believe this.

Daniel Dodson

It was after contamination by her that little sister made allegations. This was all -- there was plenty of evidence of contamination and reasons for the other ones to have come up with it. And the most attenuated one, the cousin who made the scars allegation, probably going in, was the most credible.

And once that little smoking gun comes up that says this one's up a tree too, the rest fall, and they did fall. And that's -- again that's what Judge Burrell said in chambers. I don't think he made it clear in the record, but that was the reason. Once he saw the penis evidence, he's like, I can't stand behind these findings of guilt.

And there would be some argument -- the only argument against considering that an acquittal is that, well, the prosecutor might have been able to refute that, but not in this case, because that was evidence where the smoking gun was there. I mean, the way to prove that Scott Wells didn't have scars on his penis was there in the courtroom.

(Note: We ran this post for several hours last Thursday, but it never went out via social media because I wound up wrestling with a stomach virus and had several legal documents to prepare, so it became a day of distractions. I decided to take the post down and save it for today. Sorry for the confusion.)


(To be continued)


Previously in the series:


* Court finds Missouri lawyer David Shuler provided ineffective assistance of counsel (11/13/18)

* Missouri attorney David Shuler took no action at trial . . . (11/27/18)

* David Shuler, unable to react to false testimony that Scott J. Wells had scars on his penis . . . (12/4/18)

My nephew, Noah Hayes Shuler, was not guilty in wild-ass speeding case in January, but suddenly became guilty in April. How did that happen?

Noah Shuler and Aubrynne Russell

My nephew, Noah Hayes Shuler, has seen his wild-ass speeding case (being clocked at 88 mph in a 60 zone) resolved -- with a plea of guilty, six months of probation, and a fine of $90.50. The offense to which he pleaded guilty is the equivalent in Missouri of a DUI -- which carries possible punishment of up to six months in jail and a fine of $1,000 -- so it's clear Noah received softball treatment, even though he also had a possession-of-drug-paraphernalia charge pending when the speeding case first was set to be heard.

That presents this question: Why was Noah "not guilty" when he entered a plea back in January -- the speeding incident happened in May 2017, but was not listed as a court case until late October -- but he suddenly became guilty on April 6?

Public documents suggest the answer is that Noah's father, my lawyer-brother David Shuler, pulled a con game to help his son achieve a soft landing while he had three court cases pending at one time. That David Shuler would engage in a con certainly is no surprise, given the evidence we've uncovered in recent weeks that he has acted with repugnant deceit toward Carol and me. In short, evidence suggests David helped arrange our unlawful eviction, his actions regarding a 911 call (that I did not make) damned near got us killed, and he played a huge role in Carol's arm being broken. (Details in upcoming posts.)

How did David Shuler game a system that is broken beyond repair to begin with? It couldn't have been hard, when you are a lawyer with a kid who can't stay out of trouble, and many members of the legal tribe are known for protecting their own -- while screwing the general public at every opportunity.

Noah's case presents powerful proof that our pleading system in criminal cases is a dysfunctional, steaming pile of cow feces. During the course of a court case, individuals who "swear falsely" (under oath) can be subject to criminal charges in the form of perjury. But the same individuals can enter a false plea -- David Shuler likely knew his son was guilty in the speeding case -- and get away with it.

Curious timing was everywhere in the Noah matter -- and that's because he was facing multiple charges, in separate cases, at roughly the same time. Let's follow the docket trail:

* May 22, 2017 -- a state trooper clocks Noah driving up to 88 mph in a 60 zone on U.S. 65 near Springfield, MO.

* October 28, 2017 -- the case appears in public records as a court matter. Why the delay of more than five months? Our guess is that Noah was hoping the case would go away and did not tell his parents, and they likely got clued in when a piece of court mail arrived at the residence.

* December 19, 2017 -- Noah is set for arraignment, but David Shuler (acting as his son's lawyer) was granted a continuance.

* January 17, 2018 -- The arraignment is held, and David Shuler enters a plea of "not guilty."

Let's catch our breath and remember that date -- Jan. 17, 2018. That's when Noah, according to his lawyer/father, was not guilty.

But let's consider another key date -- Dec. 30, 2017. That's when a cop in Sparta, MO, pulled Noah and girlfriend Aubrynne Russell over (she was driving and charged with speeding), with Noah found in possession of drug paraphernalia.

David Shuler almost certainly knew about the drug charge when he entered the "not guilty" plea in the speeding case on Jan. 17, 2018. But that's just the first sign of gaming. The next came on March 7, 2018, when a hearing was set in the speeding case, and David again asked for a continuance -- this time, the hearing was reset for April 6, 2018, Friday before last.

Was there a legitimate reason for the continuance? The answer probably is no. David Shuler likely knew two things: (1) Noah was going to have to plead guilty in the speeding case; it's pretty hard to prove your innocence when a trooper has clocked you driving at 28 mph above the speed limit; (2) The drug-paraphernalia case still was hanging out there and could lead to a tougher sentence for Noah in the speeding matter.

I don't claim to be an expert on the criminal side of our "justice system," but my research indicates it's not a good idea to get a new charge -- particularly a drug-related matter -- while another charge is pending. Prosecutors, if there are any real ones in Missouri, can ask for tougher sentences in such circumstances. And Judge Jerry Harmison might have become inclined to issue more than a wrist slap in the speeding case.

Our guess is that David Shuler asked for the continuance on 3/7 because he knew the drug matter had not been resolved. We're still not sure it's been resolved -- a hearing was set for April 12 (last Thursday, in Sparta Municipal Court), but the record disappeared from case.net on or about March 8, one day after David asked for a continuance in the speeding case.

Did that keep prosecutors and Judge Harmison from even knowing about the drug case -- and help Noah get softball treatment that he likely did not deserve?  The answer probably is yes.

David Shuler makes good money, but we've seen substantial evidence that suggests he's not much of a lawyer. Early in his career, David did quite a bit of criminal-defense work, but he wound up with a legal-malpractice case that paints a disparaging assessment of his legal skills.

Attending the University of Missouri School of Law might not make you much of an attorney, but it apparently provides you with enough knowledge of procedural matters that you can easily con a court and give your ne'er-do-well kid a soft landing.

Impressive.

(Note: While Noah Shuler's drug paraphernalia case has disappeared from case.net, the speeding charge against his girlfriend, Aubrynne Russell, remains in plain sight, for anyone to see -- 160572245, CITY OF SPARTA V AUBRYNNE LAINE RUSSELL. A hearing for her was set on April 12 (the same date as Noah's was set), but attorney Russell Dempsey (the same attorney Noah had) asked for a continuance, and a new hearing date has not been set. Why does Ms. Russell's speeding charge remain visible to the public, while Noah Shuler's drug-related charge has disappeared? Is she being treated differently from the son of a local lawyer? Is that "justice" in the Missouri Ozarks?)

Missouri lawyer David Shuler missed chances to impeach prosecution witness, leaving his client staring at five life sentences in child sexual abuse case

Daniel Dodson

(Sixth in a series)

How important is it for a criminal-defense attorney to impeach a prosecution witness -- when he has the opportunity -- especially in a child sexual abuse case that carries profound penalties?

Records in State of Missouri v. Scott J. Wells ((No. 31302CF5509) show that missed opportunities to impeach can have profound consequences for a client who is facing a likely punishment of five life sentences, plus 55 years. Still, with so much riding on the outcome, Springfield, MO, attorney David Shuler -- my brother -- missed opportunities to tear holes in the prosecution's case. An expert witness in Scott Wells' subsequent legal-malpractice case shows how David Shuler was center stage in a classic case of ineffective assistance of counsel -- one that almost put an innocent man behind bars for life.

Daniel Dodson, an attorney from Jefferson City, MO, got a guilty verdict overturned after showing a complaining witness falsely stated that Scott Wells had scars on his penis. Why would four complaining witnesses -- two biological daughters, one step-daughter, and a niece -- concoct stories that Scott Wells had sexually abused them? Evidence in the record suggests it was because Wells' ex wife (Cynthia Hedrick) wanted her new husband (Jeff Hedrick) to adopt at least two of the girls -- and Wells refused to go along with the plan.

Dodson showed in a new-trial hearing -- which ended with Judge Don Burrell reversing his own guilty verdict -- that David Shuler had an opportunity to impeach Cynthia Hedrick after she had denied having plans for adoptions. Shuler, however, let the opportunity pass, contributing to a guilty verdict for Scott Wells -- which only was overturned once Dodson came on the scene.

After the guilty verdict was reversed, Wells filed a civil complaint for legal malpractice against Shuler -- with Dodson serving as expert witness for the plaintiff. Dodson shows in a deposition how witnesses in child sexual abuse cases can provide (knowingly or unknowingly) false testimony that proves ruinous for adults. He also shows how David Shuler failed to counter false testimony from the girls -- and convince the trier of fact that it likely originated with the ex-wife's statements about adoption.

Below is testimony from Dodson's deposition, focusing on the sometimes dubious testimony of child witnesses, and Shuler's failure to impeach Cynthia Hedrick. The testimony begins on page 94 of the first document embedded at the end of this post. The questioner is Scott E. Bellm, from the Turner Reid Duncan firm of Springfield, representing David Shuler:


Bellm: Part of what you were going to do -- part of the process that you went through to defend Scott was to develop a theory of the case, true?

Dodson: Yes.

Bellm: And part of the theory that you were going to have to develop and address at trial, a big question at trial, was to explain why these four girls were making up these terrible stories about Mr. Wells, according to him.

Dodson: . . . There are various issues. First of all, the three daughters, the two natural daughters and the stepdaughter, it's very clear, even though the mother was untruthful about it on the stand, that there had been several discussions about them wanting to be adopted by their stepdad. The motivation there, I mean, ultimately take a look at Scott Wells. He's a funny-looking guy. He's not necessarily the dad you want to walk around the shopping center with. He's got an odd demeanor. He has big eyes. He walks funny.

Little girls -- and especially little girls in a family like this, where I don't sense that the mother had a lot of control, there wasn't a lot of incentive for them to develop a sense of right and wrong and truth and dishonesty. Their motivation was they wanted to get away from Scott. And I think that started with Brittany. The suggestion comes in, Courtney's on board, then Alicia's on board, then her cousin, who -- and I think she's the one who at first said, no, I don't remember anything like that. And it's almost like, well, you know, holy cow, if he found Courtney attractive enough to fondle, I can hardly say that I wasn't that attractive, too.

There are various motivations. There is no way to know -- there's also no way to know for sure whether they have convinced themselves that they're telling the truth. But you can certainly present to a jury the reasons to understand how they might have gotten to a point where they're in court, telling things that are not truthful.

Scott Bellm

Bellm: Scott's had no contact with these girls, as far as you know, of any significance since --

Dodson: Since then, no. No.

Bellm: Okay. Are you aware of any proceeding -- conversation with Scott where he was asked to give up his parental rights by any of those girls after the fact?

Dodson: I don't think so. I'm not sure though.

Bellm: Do you know whether, in fact, they have been adopted by anyone?

Dodson: I don't know.

Bellm: If they have not, they have not undertaken to terminate Scott's parental rights in light of all these things, not taken any affirmative steps toward getting an adoption through -- with their stepfather with that theory or motive?

Dodson: I don't think so. They have got -- in effect, they have got what they want. Scott's out of their lives . . .

Bellm: . . . have you done any additional work, whether it be notes or what have you, where you have memorialized any of your opinions or thoughts, just for the civil case?

Dodson: No. I have, and this is an ongoing thing -- I mean, I speak with Scott every now and then, because his family still gets told that they can't have their kids in Scott's presence because of these allegations.

David Shuler

Family Services people don't tend to take acquittals or dismissals of felony charges, they just -- they continue to try to constrain Scott's family in terms of what they can or can't do with Scott around the kids. And I have -- but I don't take notes. I just take a phone call every now and then. . . .

Bellm: But those aren't really issues for Scott, as much as his parents?

Dodson: Oh, they're big issues for Scott. He's told that he can't be around the house when his nieces or nephews are around and so on and so forth. Yeah, it's a huge issue for him. It weighs on him terribly. I can tell when I talk to him.


(To be continued)


Previously in the series:


* Court finds Missouri lawyer David Shuler provided ineffective assistance of counsel (11/13/18)

* Missouri attorney David Shuler took no action at trial . . . (11/27/18)

* David Shuler, unable to react to false testimony that Scott J. Wells had scars on his penis . . . (12/4/18)

* Expert testifies that Missouri lawyer David Shuler did not believe in his own client . . . (12/10/18)

* Record suggests Scott J. Wells faced charges because his ex wife wanted her new husband to adopt girls . . . (1/3/19)

Scott J. Wells, who had his conviction overturned due to David Shuler's woeful lawyering in a child sex abuse case, now faces federal child-pornography charges, which sound like retaliation from the legal tribe

Scott J. Wells

A Missouri man, whose conviction for child sexual abuse was overturned due to my brother's ineffective assistance of counsel, remains in legal jeopardy -- and our investigation indicates the legal tribe is retaliating against him for fighting back against bogus criminal charges and suing the lawyer (David Shuler) who almost caused him to receive five life sentences.

Scott J. Wells, of Springfield, faces federal charges of receiving and distributing child pornography, with a tentative trial date of Feb. 11. Our review of the public record suggests the charges are preposterously weak, with no sign of probable cause that Wells committed the offenses under 18 U.S. Code 2252(a)(2) and (b)(1). But Wells' two court-appointed lawyers -- U.S. Public Defender David Mercer (no longer on the case) and private attorney Shane Cantin (of Springfield's Carver Cantin and Mynarich) -- have done virtually nothing to defend him.

Cantin recently sent a letter to Wells stating that he had no defense and that Wells was almost certain to be convicted -- likely receiving a stiffer sentence if he goes to trial rather than pleading guilty. (More on the letter in an upcoming post.) Despite that, Cantin appeared at a recent pre-trial hearing and told U.S. Magistrate David P. Rush that he was "ready for trial." Sources tell Legal Schnauzer that Cantin has not even shown his client the government's evidence against him, which Wells is entitled to see under the Sixth Amendment, so how can Cantin be ready for trial?

Here is perhaps the most disturbing part about U.S. v. Scott James Wells (17-mj-2020-DPR). Wells has been detained for almost two years, spending all of that time at a facility in Leavenworth, Kansas, or various county jails in Missouri. Wells has been behind bars because the trial court apparently considers him a threat to society. Wells is virtually blind in one eye and has a benign brain tumor that forces him to use a walker or wheelchair to get around, but he's a threat to the public?

(Note: The criminal complaint in U.S. v. Wells is embedded at the end of this post.)

Chief prosecutor James J. Kelleher apparently pushed for detention 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. 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.

Shane Cantin

Wells' legal-malpractice lawsuit probably cost David Shuler a substantial amount of money -- maybe six figures or more -- and the case file indicates Wells was on his way to winning it. Wells cleared the major hurdle of summary judgment, and the case was on the verge of trial -- with the sides working to formulate jury instructions -- when Wells' attorney (John J. Allan, of St. Louis) bailed out, claiming he needed more money. Wells' middle-class family already had paid more than $80,000 to beat the original charges, so they could not afford to pay more.

Allan's actions make no sense because his client was one of the few who gets almost to trial in a legal-malpractice case, and expert witness Daniel Dodson had provided devastating deposition testimony against David Shuler. The court file is voluminous, but we've found no sign that David Shuler even had an expert witness -- a lawyer who was willing to go under oath and state that Shuler handled the Wells case with the proper standard of care. 

By the way, public records show the Missouri Bar has disciplined John J. Allan at least twice. That raises this question: What kind of lawyer did Scott Wells have in his legal-malpractice case? Did someone dangle incentives that caused John J. Allan to leave his client high and dry on the verge of a major court victory?

Why is the child-porn case against Scott J. Wells so lacking? Here are just a few reasons, based on our review of the record:

* A fundamental provision of the relevant law is that the accused must "knowingly" receive or distribute child pornography. We see no probable cause that Scott Wells did either.

* A fundamental provision of the relevant law is that the alleged child victims must be minors, age 17 or younger. We see nothing in the criminal complaint that proves the alleged victims were minors -- or, more importantly, that Scott Wells knew they were minors.

* Case law holds that an accused must take "affirmative actions" to show knowing receipt, possession, or distribution. The record indicates that a woman in Tennessee was a Facebook friend of Scott Wells and sent him an explicit photo of her daughter. There is no evidence that Scott Wells asked for the photo or even knew what it was when he clicked on it. Wells sent the photo to the daughter to alert her to the mother's actions. There is no indication he did anything else with it, but federal prosecutors apparently claim warning a victim amounts to distribution of child porn.

* We see no grounds in the record for detaining Scott Wells as a threat to the community, and there is nothing on file to suggest either of his court-appointed attorneys tried to keep him out of detention or get him out of detention once he was wrongfully behind bars.

Despite the utter lack of probable cause on central elements of the offense, U.S. Magistrate David P. Rush approved Wells' arrest, a search of his home, and his detention. Is Rush little more than a rubber stamp for prosecutors? Is he part of a scheme to punish Scott Wells for standing up to the legal tribe?

We will address those questions and many more in upcoming posts.