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Striving for fairness toward people accused of crimes

   This has been a long, hard struggle for David Schalk. He was disqualified from representing Chad Pemberton in June of 2007 on grounds of a nonexistent conflict of interest. Schalk tried to obtain solid proof that the State's witness continued to deal drugs all the way up to a week prior to trial. When someone called him a week prior to the scheduled Pemberton trial to say she intended to buy marijuana from the informant in one hour, Schalk asked her to meet him to borrow a digital voice recorder. At the meeting, Schalk got the idea of also providing $200 in recorded currency. His effort on behalf of Chad Pemberton created no conflict of interest and Pemberton waived whatever conflict the judge perceived. Because of Schalk's disqualification, Pemberton was denied a speedy trial. Schalk filed Pemberton's petition for post-conviction relief on April 17, 2008 and 18 days later, on May 5, 2008 he was charged with conspiracy to possess marijuana. The petition was summarily denied without the required hearing on grounds that the judge made the right decision in the underlying felony case so there was no need to argue about it. The judge took notice of the underlying felony case, which was clearly contrary to Indiana law.

    On appeal, the Indiana Court of Appeals considered things outside the record and disqualified Schalk because, they said, his attempted sting on the informant/witness/dealer was a violation of Indiana law. The Court of appeals did not comment on Schalk's well-reasoned argument supporting his contention that he did not violate Indiana law. Neither the prosecutor nor the trial court judge had said or written a single word refuting or even acknowledging the existence of Schalk's arguments. Although it was clear from the record and acknowledged by all concerned that David Schalk had no intention of ever taking possession of the marijuana, he was convicted in a bench trial of attempted possession of marijuana and sentenced to three months of unsupervised probation and 40 hours of community service.

   David Schalk's actions might possibly have constituted a criminal offense in some jurisdictions, such as states with regulations and safeguards for controlled buys. Schalk was completely within his rights to defend his client as he did in Indiana. He was attacked for prying into the nefarious activities of a confidential informant, and there is reason to suspect, for filing a petition for post-conviction relief on behalf of Chad Pemberton.

Amicus help might be needed soon

   As you might have gathered from the section above, it might be necessary to seek transfer to the Indiana Court of Appeals. Of course, if the Court of Appeals addresses my arguments and refutes them in a cogent and principled manner, I might learn something. I would certainly not file a frivolous petition for transfer if I am shown to be wrong. So far, the courts have ignored my arguments, and the Indiana Attorney General's effort to dispute them failed miserably.            

David Schalk



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