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. So the prosecutor made an error and the defendants get a full remedy. Just one short paragraph to undo the harm of the erroneous prosecution. Wow. Just wow.

  2. Wake up!!!! Lawyers are useless!! it makes no difference in any way to speak about what is important!! Just dont tell your plans to the "SELFRIGHTEOUS ARROGANT JERKS!! WHO THINK THEY ARE BETTER THAN ANOTHER MAN/WOMAN!!!!!!

  3. Looks like you dont understand Democracy, Civilized Society does not cut a thiefs hands off, becouse now he cant steal or write or feed himself or learn !!! You deserve to be over punished, Many men are mistreated hurt in many ways before a breaking point happens! grow up !!!

  4. It was all that kept us from tyranny. So sad that so few among the elite cared enough to guard the sacred trust. Nobody has a more sacred obligation to obey the law than those who make the law. Sophocles No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor. Theodore Roosevelt That was the ideal ... here is the Hoosier reality: The King can do no wrong. Legal maxim From the Latin 'Rex non potest peccare'. When the President does it, that means that it is not illegal. Richard Nixon

  5. So men who think they are girls at heart can use the lady's potty? Usually the longer line is for the women's loo, so, the ladies may be the ones to experience temporary gender dysphoria, who knows? Is it ok to joke about his or is that hate? I may need a brainwash too, hey! I may just object to my own comment, later, if I get myself properly "oriented"