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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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  1. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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