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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. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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