By KEVIN NEVERS
Attorneys for former Westchester Township resident David Malinski have
petitioned the Indiana Supreme Court to overturn his murder conviction in
an appeal which, among other things, argues that investigators denied
Malinski his right to counsel and that prosecutors improperly influenced
the jury when they introduced evidence of Lorraine Kirkley's Christian
Malinski was convicted Feb. 7, 2000, of the murder of Kirkley and six
other charges connected to her disappearance from her Center Township home
July 21, 1999. Her body has never been found.
Malinski--who was also convicted of two counts of burglary and one count
each of criminal deviate conduct, criminal confinement, auto theft, and
arson--is currently serving a term of 155 years at the State Prison in
The 77-page appeal--filed jointly by the Chicago law firm of Thomas M.
Breen & Associates and the lead defense attorney at Malinski's trial,
John Martin of the Valparaiso firm of Tsoutsouris & Bertig--raises six
issues for the Supreme Court to review:
Malinski, the appeal argues, was denied his right to counsel when
Investigators barred attorney John Martin, retained by Malinski's family,
from speaking with Malinski while he was being interrogated in the hours
after his arrest July 27, 1999. Porter County Superior Court Judge Thomas
Webber denied a petition filed that morning by Martin which sought access
to Malinski. Malinski himself waived his Miranda rights and agreed to give
investigators two tape-recorded statements.
Investigators, the appeal argues, violated
Malinski's right to
effective counsel when they surreptitiously removed documents from his
jail cell. Prosecutors later reviewed those documents, which the appeal
contends led investigators to discover the hidden "porno room" in Malinski's home and the 17 Polaroid photographs of a nude and bound
Kirkley. Superior Court Judge Roger Bradford barred prosecutors from using
any of the documents as trial evidence.
Prosecutors, the appeal argues, improperly introduced evidence of
Kirkley's good character and Christian faith "when the defendant never
offered evidence to the contrary."
Prosecutors, the appeal argues, on several occasions improperly referred
in their closing argument to Malinski's failure to testify on his own
Bradford, the appeal argues, erred when he permitted Dr. Joseph Prahlow,
a forensic pathologist, to testify that Kirkley was an unwilling and
possibly unconscious subject in the Polaroid photos.
Prosecutors, the appeal argues finally, failed to meet their burden of
proof and establish Kirkley's death.
Assistant Prosecuting Attorney Todd Shellenbarger declined to comment on
the substance of the appeal, but he did tell the Chesterton Tribune that "we intend to answer every challenge raised by the
appeal" and that "our office is cooperating with the State Attorney
General's office in
preparing our response.