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INDIANAPOLIS -- Porter County prosecutors not only "failed miserably" in proving that David Malinski was guilty of murdering Lorraine Kirkley, but knowingly engaged in "suspicious" and possibly improper conduct in their zeal to secure a conviction, the killer's attorneys argue in legal documents filed with the Indiana Supreme Court.

In asking the high court to reverse the February conviction, Malinski's legal team claims, in an exhaustive 76-page brief, that "from the outset David's ability to defend himself was ham-strung" by the actions of police and prosecutors in the high-profile case.

"Desperate to make a case against (Malinski)," the attorneys contend, "law enforcement officers proceeded to take whatever steps were necessary to gain evidence while the prosecutor's office turned a blind-eye."

Porter County Prosecutor James Douglas declined to comment on the specifics of Malinski's latest legal maneuver, but a spokeswoman denied allegations of prosecutorial wrongdoing.

In the court documents obtained Wednesday, defense attorneys claim that authorities not only violated Malinski's constitutional rights by refusing to allow him to see a lawyer during a police interrogation, but later rifled through his jail cell and illegally copied legal papers that contained confidential defense strategies and led them to additional evidence.

In addition, the appeal contends, the Porter Superior Court judge presiding over the trial allowed prosecutors to use improper and potentially prejudicial evidence.

"Even tainting the trial with improper and illegally gained evidence," Malinski's attorneys argue, "the state failed miserably in proving David guilty beyond a reasonable doubt."

Malinski, 35, of Chesterton, was convicted by a jury in February of abducting, torturing and murdering Kirkley, a 34-year-old registered nurse from Valparaiso, who disappeared from her home on July 21, 1999. Malinski was later sentenced to 155 years in prison.

Despite an intense search, authorities never found Kirkley's body.

According to authorities, Malinski, an exercise physiologist, first met Kirkley in 1994 when both were working in the cardiac rehabilitation center at Porter Memorial Hospital.

Malinski later claimed that his friendship with Kirkley evolved into a six-month extramarital affair that lasted until the day of her disappearance. He vehemently denied killing the woman, but he admitted helping stage a burglary and abduction at her home as part of her secret plan to disappear.

Supreme Court spokesman David Remondini said justices have yet to decide whether to hear oral arguments in the case or whether they'll decide the case based solely on written legal briefs.

Either way, a ruling is likely to take several months.

In his appeal , the convicted killer's attorneys claim that nothing uncovered by police investigators or FBI agents refuted Malinski's claims, although they concede that he gave investigators two conflicting statements concerning his involvement with Kirkley.

"Although David never admitted to harming Lori Kirkley in any fashion, the prosecution repeatedly argued at trial that the inconsistencies between (the two statements) was evidence that David was a liar," the appeal said.

"Thus, according to the prosecution, David was guilty of killing Lori Kirkley." Those statements, however, fall far short of establishing Malinski's guilt, his attorneys contend.

Although jurors surely were "mesmerized by the sheer magnitude of the state's" case, the defense argued, "Dispense with the smoke and mirrors, a review of the record reveals that as a matter of law, the state failed to produce evidence beyond a reasonable doubt that Lori Kirkley has been murdered by anyone, let alone David Malinski."

"The evidence," the appeal adds, "created an equally powerful or even greater inference that she is alive. The utter lack of motive for David to kill Lori further undermines the entirety of the state's circumstantial case. ... Thus, if it is plausible that David Malinski, with no proven motive and no evidence to suggest that he had the character to commit a violent crime, committed the heinous crimes for which he was charged, it is equally plausible that Lori just up and left her husband and family without notice and is in fact alive."

Malinski's attorneys saved their harshest criticism for the conduct of police and prosecutors who handled the initial investigation, in which the gruesome details "seeped into the collective conscience of the Porter County community ... in almost Hitchcock-esque fashion."

"Officers sought to speak to David without his counsel present. Investigators monitored all of David's telephone calls," the high court appeal said. "Most repugnant of all their conspiring efforts, investigators secretly sacked David's jail cell ... and the nefarious task force got at least a piece of what they wanted ... a literal blueprint to the defense and leads to physical evidence," which included explicit photographs of Kirkley taken by Malinski.

Attorneys also criticized prosecution efforts to depict Kirkley as a devout Christian, a dutiful wife and everyone's cherished friend -- the type of person who would never get involved in an extramarital affair.

"In a final coup de gras," the attorney said, "each prosecuting attorney took their shot at chastising David for failing to testify in his own defense," which under the law he isn't required to do.

Despite "all of the prosecution's improper pre-trail and trail conduct" the trial court judge did nothing to "provide adequate relief," the attorneys claimed. "On appeal, we ask this court to refrain from putting its imprimatur upon the improper prosecutorial conduct as the trial court did."

Terry Burns can be reached at tburns@howpubs.com or (317) 637-9078.

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