Polygraph test
A Missouri man has been detained for almost three years on federal child-pornography charges, based largely on his "conviction" in a 2004 state case for child sexual abuse. U.S. prosecutor James Kelleher, in hearings before multiple judges, generally has failed to mention that Scott J. Wells' conviction in the 2004 case was overturned after a complaining witness testified falsely under oath about the presence of scars on Wells' penis -- and after the state court found Wells had received ineffective assistance of counsel from my brother-lawyer, David Shuler.
Kelleher also fails to mention that Wells' plea to misdemeanor child-endangerment charges in 2004 was an Alford plea, a legal maneuver in which the prosecution and accused reach a compromise, avoiding a trial, with the defendant able to maintain his innocence. In the Wells case, there is no evidence in the record -- not even an allegation -- that he actually endangered a child.
On top of all that, Wells also took a polygraph test, at the insistence of Daniel Dodson, the Jefferson City attorney who took over the earlier case in an effort to clean up the mess David Shuler had created. Wells passed the polygraph test, which was administered by John Harvill, a highly regarded polygrapher from Springfield, MO.
That Wells passed a Harvill-administered polygraph was a key factor in getting the 2004 conviction overturned, Dodson said in a depostion for Wells' legal-malpractice lawsuit against David Shuler. We certainly have seen no sign that Kelleher has mentioned the positive polygraph outcome in arguments before federal judges, an indication the prosecutor is more interested in keeping Wells locked up, lawfully or unlawfully, rather than ensuring justice is done. Kelleher's actions also could point to fraud on the court, which might render rulings in the child-porn case void.
John Harvill
The law surrounding polygraphs is complex and somewhat unsettled. In general, it is difficult to get polygraph results admitted as evidence in court, but it can happen under "back-door" circumstances, when one party or another opens an evidentiary window that allows admission of the polygraph results. Here is testimony regarding polygraphs from Daniel Dodson in a deposition for Wells legal-malpractice case against David Shuler. Scott Bellm, Shuler's attorney is doing the questioning: (Two volumes of the Dodson deposition are embedded at the end of this post.)Dodson: One of my quarrels with [Shuler], even though I may be unorthodox in this way, polygraphs are the most incredible tool in cases like this. Even a prosecutor who is entrenched and won't dismiss based on them has the wind taken out of his sails when that comes up.
And I think Shuler mentioned it and says he mentioned it several times, but he didn't bring it home to Scott, which wasn't that hard to do, that this needs to be done, this is something that is an essential tool for getting the prosecutor to back away a little bit, especially when you have so much more to work with to say these things did not happen.
The discussion eventually turns to the law surrounding polygraphs:
Bellm: Now, with the polygraph, is it your testimony that you believe you would have been able to get the results of that polygraph into evidence at trial?
Dodson: No. The law is heavily against me on that. I -- the purpose of a polygraphing a case like this is mostly in dealing with the prosecutor, mostly in taking -- and in this case, I think, as always, cases like this [in Greene County] start out with Jill Patterson, who believes every allegation she's ever heard from any young child and is very gung-ho about it, and the Defendant is evil and so on. But it's a -- she won't admit it, and Kelleher didn't admit it, but it's a stomach punch to a prosecutor to see a John Harvill polygraph that says, hey, this guy's telling the truth. Because they know that is as reliable as a polygraph is going to get.
They know that John can provide a stack of about 30 letters from different law enforcement agencies who have relied on his polygraphs over the years. And I do hold out some possibility, as I said in the hearing, that, you know, at some point, someone's going to establish enough reliability to a polygraph to get it admitted. And in this case, with John's credentials, I felt like I had a shot. But keep in mind also that in a judge-tried case, the mere offering of it has the fact of it before a trier of fact. And that may be a little "back door," but it's certainly useful.
Dodson was asked to describe steps he took in Scott Wells' defense that David Shuler did not take -- and part of that involved the polygraph:
Bellm: Anything else that you did in general terms that David did not do?
Dodson: Well, a big part of it was bringing home to Scott Wells his situation and the seriousness, convincing him of what he needed to be convinced of, that he needed to take a polygraph, convincing him and his family that it was going to take a lot more money to keep Scott out of prison, and yeah, doing the client-control things that you have to do in a serious situation like this.
And there were a ton of other things, too. I mean, research on, you know, ho to get expert testimony in and just -- I mean, ultimately David Shuler didn't do even half of what needed to be done to defend this case.
How did David Shuler's failure to get a polygraph test hurt his client? Dodson points to one glaring example where Shuler called a female police officer (Nina Sala-Gault) to the stand -- apparently because she had interviewed Wells and the complaining witnesses, and she raised the polygraph issue -- but Shuler had no results with which to counter:
Dodson: Given -- the funny thing is despite my questions about his strategic choices on trying it to a judge, the -- he had put himself in a position to win it - or he would have been in a position to win it in front of Judge Burrell if he had been effective. If he had gotten Scott to take a polygraph and pass it, then when the cop [Sala-Gault] he called to the stand, which was a strategic blunder, but when she interjected the part that [Wells] had refused to take a polygraph, that opened the door, and he would have been able to get in that polygraph evidence legitimately, and it would have been part of the record. But he hadn't done the appropriate thing in getting the polygraph and might not have thought to use it if he had it.
(Note: It's not clear from the record, but it appears Sala-Gault -- or someone else on the police/prosecutor side -- tried to get Wells to take a police-administered polygraph test, and Wells refused. Our research indicates criminal-defense lawyers generally would call that a wise decision. Dodson, on the other hand, was talking about having a test conducted by an independent polygrapher, such as John Harvill. Wells agreed to take the Harvill test, and he passed it.)
How does an attorney effectively use polygraph evidence? Dodson provides insights -- and points out that Shuler not only failed to have his client take a polygraph, be he called a witness who raised the issue on the stand:
Bellm: And I want to back up just for a second. You said something earlier. You're aware that the officer volunteered on the stand at trial the issue relative to [Wells'] failure to take a polygraph test?
Dodson: Oh, and I'm aware she did it on direct examination, which calls into question why in the world he ever called her. . . .
Bellm: Okay. Is it your testimony that he should have gotten the polygraph rest for the reason that she -- he could have anticipated that she might volunteer something like that and have the test waiting in the wings to rebut that testimony?
Dodson: My contention -- of course, he couldn't have anticipated that. My contention is he should have gotten the polygraph test for the reasons I have stated, that it is an irreplaceable strategic tool, if done properly. Some people who are telling the truth don't pass polygraph tests. If it's done properly and discreetly, no one knows about it, so there's not any potential harm to it. [Shuler] should have gotten the polygraph for different reasons and been in a position to do it -- because even though [the officer] was his witness, she was certainly of the level of a hostile witness, and I think Judge Burrell would have ruled that opened the door.
A lawyer, Dodson says, does not discuss the possibility of a polygraph test with prosecutors ahead of time:
Bellm: Are you aware of in this particular case whether that offer was ever made?
Dodson: What offer is that?
Bellm: To have him take a polygraph test.
Dodson: Oh, if he takes a polygraph? I can tell you strategically you don't ever want to discuss that offer. You want to get the polygraph test, and if it's a good polygraph test, you want to hold it under the prosecutor's nose and say, "By the way, my client didn't do this; does that change your outlook? You certainly would not discuss ahead of time that your client was going to take a polygraph.
Bellm: You believe the favorable polygraph results had anything to do with the plea that you were ultimately offered?
Dodson: Absolutely.In Dodson's view, proper use of the polygraph results could have led to dismissal of the charges against Scott Wells -- and to this day, in the federal child-porn case, Wells has his 2004 conviction (even though it was overturned) and the resulting Alford plea being used against him:
Bellm: Well, if [Shuler] would have talked Scott into obtaining the polygraph test, what you're telling me is -- if he would have talked him into it and Scott would have passed at that time, then that would have been a bargaining tool to be used with the prosecutor to secure a better plea bargain, right?
Dodson: In this case, to secure a dismissal.
(To be continued)
