August 14, 2013: I still have no insight into the wrongfulness of my unspecified acts, or into why my legal analysis might be flawed. The Indiana Supreme Court refused to say. Either its members like to play childish party games with secrets, or they don't know of a single instance of my making an unfounded attack on someone involved in my case, dishonestly (or with reckless disregard for the truth) impugning a judge's integrity, or interfering with the discovery process. I suspect that, if they bothered to study it, they saw that my legal analysis is more than reasonable and remains unapposed by any sensible contrary analysis. I was advised along the way that I was supposed to grovel, and never criticize the patently absurd and misleading (in my opinion, dishonest) published opinion of the Indiana Court of Appeals in Schalk v. State. I was very reserved and understated in what I said, but the unforeseeability of that unprecedented and irrational opinion vindicates me. Its "police state" conclusion also vindicates me since I happened to still be a bona fide, duly appointed and sworn deputy sheriff during the summer of 2007.
This is a textbook example of the absence of due process of law.
Edited commentary from June, 2013: I am giving up hope that the Indiana Supreme Court will relieve me of this burden, overturn the Opinion in Schalk v. State, announce that its disciplinary commission will henceforth stop bullying lawyers into remaining silent about the state of Indiana's judiciary. It doesn't seem likely that the Indiana Supreme Court will do anything to repair the damage done to my reputation by untrue and un-retracted statements published by the Indiana Court of Appeals in the Pemberton, Casady, and Schalk opinions.
Ignoring the argument I presented in the Schalk opinion was reprehensible; attributing to me meritless arguments I did not make was alarming, and refusing to publish a retraction was and is, by any standard of common decency or norm of civilized behavior, unacceptable.
My resources are depleted now. The Indiana Supreme Court did not come through for me. I need more information, but my impression at this stage is that a sole practitioner raising his son and maintaining a small office at home is too low on the social scale to merit the full protection of our laws. Anechdotal information leads me to postulate that mine is not an isolated case. Things seem to have gone very wrong, and the worse it gets, the more Indiana's attorney's are bullied into keeping quiet about it. A free democratic society governed by the People cannot function this way.
May 29, 2013. I moved the Indiana Supreme Court to stay the effectiveness of the suspension order on grounds that review of my legal argument and the record of the things I actually wrote and said will likely result in the suspension order being vacated. I mentioned my dire financial situation and the ongoing harm to my reputation. The motion was filed on May 15, 2013. I was faulted for waiting too long. I had been trying to get an organization to intervene on my behalf, but the First Amendment grounds are unclear because the suspension order contains no quotes of supposedly unprotected speech. I eventually filed the motion on my own. It was denied. Here is the "Emergency Motion for Stay": and here is the docket entry denying the motion for stay and saying that the motion to clarify the suspension order will be considered by the full court "in due course." Docket (6-2-2013)
The suspension order is, on its face, a grotesque denial of due process of law. Whoever heard of sanctions for wrongful acts in the absence of specifying what those wrongful acts were. Add to that the condition that I realize the wrongfulness of those unspecified acts and this case is seen to be even more bizarre. But the chief justice let it stand, at least until all five justices, "in due course," look into what they have done to me and my young son, and why they did it. Will they tell us who drafted the proposed suspension order which was signed by the chief justice on behalf of all five justices? Did they all see the proposed order, devoid of specific information about repeated attacks on people, inpugning the entegrity of judges, and interfering with discovery, yet effectively disbarring me since getting my license back would depend on my realizing the wrongfulness of my actions? Will they tell us if they actually found a fatal flaw in my legal analysis and, if so, did they vote on whether to divulge it or let it remain a mystery? Is the flaw in my analysis a Zen koan to be pondered year after year until one day, in one sudden stroke, the question evaporates and I find myself in a state of enlightenment? Maybe, on the other hand, some members of the Indiana Supreme Court will become enlightened and realize that some people working for the Disciplinary Commission have been doing them and the State of Indiana a disservice by bullying lawyers into silence about problems that ought to be discussed.
The conclusion that my actions on June 29, 2007 were criminal might not appear to be a denial of due process of law to a casual reader, but anyone who knows that I presented an easy-to-understand, well-documented, and well-reasoned argument in my defense that has yet to be rebutted, critiqued, or even acknowledged by any court or the Disciplinary Commission knows that I have been denied due process of law (a/k/a "due course of law" in Indiana). I don't think the Indiana Supreme Court can fairly analyze my argument and conclude that it is so unreasonable that I should have known better in 2007. The Indiana Court of Appeals ignored my argument and falsely attributed to me meritless arguments I clearly did not make. I gave the panel the benefit of the doubt and asked that their defamatory published Opinion be corrected in a timely filed petition for rehearing, the panel let their defamation stand in the record of published opinions. If I was so obviously wrong, why hasn't anyone even tried to explain why. If my analysis was reasonable but not the best one, I was not guilty of a crime under the rule of lenity and the void for vagueness doctrine, and I did not violate any rule of professional conduct.
A bizarre holding implied by the Indiana Court of Appeals in Schalk v. State is that being included in the definition of law enforcement officer elevates a person to a status above the law in Indiana. The Indiana Supreme Court declined to grant transfer, but that is not the same as affirming the "police state" holding. This gets even stranger. The record plainly shows that I was a duly appointed, sworn law enforcement officer in 2007, an unpaid deputy sheriff, so even if the Indiana Supreme Court adopts the atrocious Opinion in Schalk v. State, I would be guilty of nothing more than waiving an argument which I cannot, in good conscience, make. I can't argue that the police should be above the law in Indiana, althought that distasteful proposition is now the law of the case and published precedent. I don't think the Indiana Supreme Court wants to reverse a century of settled jurisprudence and start examining the subjective motives of police officers, judges, or any other public officials to determine the legitimacy of their actions. Besides, my efforts resulted in the confidential informant's serving time in prison for cocaine distribution while prosecuting me did nothing to deter marijuana smoking. I encouraged some people who were on their way to get marijuana, completely independent of anything I had said or done, and encouraged them to take their purchase to the police. Prosecuting me for that did not further the purposes of the marijuana prohibition.
May 9, 2013. Today the Indiana Supreme Court received two documents. One is my Motion To Clarify Order and the other is a supporting document captioned Memorandum Regarding Motion To Clarify Published Order. These two documents provide an overview of what I have endured, mostly in silence, for almost six years. People say I was naive to think the Indiana Supreme Court would actually evaluate my explanation for why my actions in the Pemberton case on June 25, 2007 were lawful and appropriate. I thought it was a good opportunity for the Indiana Supreme Court to encourage criminal defense lawyers all across the state to more vigorously defend their clients. It was an opportunity for the high court to reaffirm the Indiana State legislature's sole prerogative under our constitution to make our laws, and a good occasion for the Indiana Supreme Court to assert, lest there be any doubt, that our society is still regulated by the rule of law, and the police do not have any unwritten powers or the privilege to disregard the laws of our state merely by virtue of their being law enforcement officers.
I certainly did not anticipate that the Indiana Supreme Court would accuse me of falsely (or with reckless disregard for the truth) impugning the integrity of judges and disciplinary commission officials, and of impeding the discovery process. I am unaware of having done such things, and dismayed that the Indiana Supreme Court published the accusations without citing even one single example.
My license to practice law can be reinstated in nine months only if I demonstrate that I realize the wrongfulness of my acts. If the Indiana Supreme Court will not show me the flaw in my legal analysis; if they won't tell me what I wrote or said untruthfully (or with reckless disregard for the truth) about disciplinary commission personnel, trial court judges, and appellate judges; and if they won't show me how I interfered with the discovery process, I am effectively disbarred. I have asked adversaries and friends alike to show me the error in my legal analysis and I really cannot imagine what flaw the Indiana Supreme Court might have found after the passage of six years. They imply that they know why my actions were illegal and why my belief in the lawfulness of my actions was unreasonable! I not only can't image what the Indiana Supreme Court discovered, I also can't fathom what possible reason the Court might have had for leaving the dispositive legal analysis out of the published order. "Published Order" What do you think? Please comment on the BLOG.
April 24, 2013. For over five years, I
have been explaining why I was confident on June 25, 2007
that it was not unlawful for me to encourage and
facilitate the purchase of illegal drugs from a police
informant / drug dealer who was scheduled to testify in one
week that he bought a tiny amount of methamphetamine from my
client. I have some remarkable details to add later,
but for now I want to say a little more about my legal
argument. The judge who convicted me refused to say a
single word about my argument. When I presented it to
him for the last time at my bench trial, the judge asked the
prosecutor for his response and the prosecutor just looked
down toward the table and his pen. The judge convicted
and sentenced me to three months of unsupervised probation,
never acknowledging my legal analysis and at one point
saying that we have men in brown shirts to do that sort of
thing. The Indiana Attorney General did not deal with my
analysis, but offered one of his own which was truly absurd
and which the Indiana Court of Appeals mercifully
ignored. The Indiana Court of Appeals published an
opinion in David Schalk v. State of
Indiana which completely ignored my argument and made
short shrift of arguments which they falsely said I had
presented to them. I did not think this was willful
dishonesty, but when I asked the Court of Appeals to correct
the false and harmful information in a petition for
rehearing, they declined to publish a retraction. They could
have reached the same result while informing the public that
I didn't really make those stupid argument but had made a
more sensible one which they declined to address. In any
case, I believe honorable people normally retract false and
harmful statements they have published. I'll leave it at
that until we get a response to my motion for clarification
of the suspension order.
April 24, 2013.
March 16, 2013. The case is fully briefed in the Indiana Supreme Court. There has been no ruling on my request for oral argument.
If the case is decided as I think the facts, our laws, and our state constitution require, the Order of the Supreme Court will confirm that public officials and police officers have only the powers which are granted by our constitution and the enactments of the state legislature.
I also hope the Indiana Supreme Court will say something to encourage attorneys to engage in private and public discourse about the functioning of our state courts. The aggravating factors section of the hearing officer's reports to the Indiana Supreme Court suggest that the only words Indiana attorneys are permitted to write or utter about our appellate courts are non-judgmental or else words of praise. The people cannot do a very good job of overseeing the judicial branch of our state government when they cannot get accurate information or frank opinions from the people best situated to know what is happening, Indiana's lawyers. The lawyers seem frightened, and the hearing officer's reports illustrate why that is probably the case.
The case is styled, "In the Matter of David E. Schalk" but in my mind it is more about the honor of the State of Indiana and integrity of its institutions. I could have settled my little dispute years ago if I had wanted only to move on with my personal life.David Schalk