Chesterton Tribune

Malinski appeals his murder conviction

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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 faith.

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 Michigan City.

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:

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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.

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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.

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Prosecutors, the appeal argues, improperly introduced evidence of Kirkley's good character and Christian faith "when the defendant never offered evidence to the contrary."

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Prosecutors, the appeal argues, on several occasions improperly referred in their closing argument to Malinski's failure to testify on his own behalf.

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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.

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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.