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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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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