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Defense attorney's arranged drug buy illegal

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The Indiana Court of Appeals rejected a Bloomington attorney’s argument that his arrangement of a drug buy in an attempt to discredit a state’s witness against his client wasn’t a criminal offense because he’s “on the same legal footing” as prosecutors or police in planning controlled buys.

David Schalk was convicted of Class A misdemeanor attempted possession of marijuana after he arranged a drug buy with a state witness in his client’s trial for dealing in methamphetamine. Schalk wanted to prove that the witness was still dealing drugs in order to impeach his credibility at trial. Schalk convinced the two friends of his client to arrange a drug buy with the witness. They did so, but ended up keeping the drugs unbeknownst to Schalk. Schalk was unable to get a police officer to take the drugs and even contacted Monroe County Chief Deputy Prosecutor Robert Miller about what to do with the drugs.

Miller later contacted the sheriff’s department to report Schalk’s involvement in the scheme to buy marijuana from the witness. He was charged with Class D felony conspiracy to possess marijuana, which was reduced to the Class A misdemeanor attempted possession of marijuana after he waived his right to a jury trial. Schalk was sentenced to three months, suspended to non-supervised probation.

Schalk never denied providing the money for the drug buy, which his client’s mother reimbursed because she thought the money was needed for depositions. He argued that his conduct didn’t constitute a criminal offense and that there should be an exception to culpability under criminal statute for a defense attorney who arranges a drug buy to discredit a witness against his client at trial.

“While Schalk contends that his only intent was to deliver the marijuana to law enforcement or the court for use in defending his client at trial, such a purpose does not immunize him from prosecution,” wrote Judge Edward Najam in David E. Schalk v. State of Indiana, No. 53A01-1005-CR-210.

Schalk also argued, citing the statute allowing for a “citizen’s arrest” that the Indiana Legislature didn’t intend to prohibit residents from “taking prohibited drugs away from dealers so the drugs could be kept in police custody, used as evidence in court, and destroyed.” But there’s no evidence he tried to arrest Hyde, the judge continued, but he did arrange an illegal drug buy.

They also rejected Schalk’s argument that he has standing to assert his right to defend his client under the Sixth Amendment of the U.S. Constitution and Article I, Section 13 of the Indiana Constitution.

“We agree that Schalk’s client has a right to legal representation guaranteed by both the federal and state constitutions,” Judge Najam wrote. “But we reject Schalk’s contention that an attorney, an officer of the court, who has given an oath to support the Constitution of the United States and the Constitution of the State of Indiana is authorized to engage in criminal activity in defense of his client under either the Sixth Amendment or Article I, Section 13.”

A footnote stated that the trial court in Schalk’s client’s proceeding removed him as counsel after a hearing.
 

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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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