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Discipline case poses questions on recusals, separation of powers

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Delaware County Prosecutor Mark McKinney should be publicly reprimanded for violating four professional conduct rules in his handling of civil forfeiture matters as a private attorney while simultaneously prosecuting those same criminal defendants, according to a hearing officer the Indiana Supreme Court appointed to examine disciplinary charges against the prosecutor.

But the state’s highest court makes the final decision on whether misconduct occurred and if any sanctions should be imposed, and that now presents a novel situation in itself.

The hearing officer on this disciplinary action is Boone Circuit Judge Steven H. David, the state’s justice-designee who takes the bench Oct. 18. Reviewing and recommending sanctions in this matter on Sept. 29 culminates his role on a case that began in December 2009, long before he thought about applying for the high court. Now it’s one of his final actions on the trial bench before becoming a justice and it means he’ll likely not participate in the final disciplinary decision.

The Indiana Supreme Court last year rejected an agreement for a 90-day suspension on the grounds that some justices felt it was too lenient. Now, with only four justices considering the matter once it gets to the court, the final result on this longstanding dispute is anything but clear.

Before becoming prosecutor in January 2007, McKinney was a deputy prosecutor beginning in 1995 and worked with the now-disassembled Muncie-Delaware County Drug Task Force. He was personally involved as a deputy prosecutor in drug investigations on many of the resulting criminal cases, and from 2000 to 2007 he also received thousands of dollars in compensation from the private forfeiture settlements in his role as a private attorney from those criminal defendants being prosecuted. This Indiana Supreme Court Disciplinary Commission action came in 2009, following one in 1999 in which no action was taken.

After a new mayor launched an inquiry concerning that practice in 2008, McKinney ultimately stopped it. A special prosecutor in May 2009 cleared McKinney of any criminal wrongdoing in his handling of drug forfeiture cases. In his findings as hearing officer, Judge David said all money was accounted for and that there’s no evidence McKinney ever agreed to soften charges or reduce plea agreements for defendants in exchange for forfeiture money or action.

But Judge David found the disciplinary commission proved that the prosecutor violated four Indiana Rules of Professional Conduct – 1.7(b), 1.7(a)(2), 1.8(I), and 8.4(d). The allegations are that his profiting in drug forfeiture cases – his receiving 25 percent of the money forfeited by or seized from drug defendants per fee agreements – impeded the state’s criminal cases that he was involved in prosecuting.

“From any non-lawyers perspective, it is reasonable to conclude that the ethical propriety of the civil forfeiture methodology employed in Delaware County was clearly in question almost from its inception,” Judge David wrote in his report, which found both mitigating and aggravating factors.

Mitigators are the lack of any quid pro quo, McKinney has no prior disciplinary history, and he has held leadership roles in the Indiana State Bar Association and Indiana Continuing Legal Education Forum’s governing board, as well as in several other community organizations. He also determined the significant decade-long lapse in investigating and prosecuting this between 1999 and 2008 was a mitigating factor. But an aggravator factor is that McKinney never investigated this issue but essentially swept it under the rug for so long.

“He was either convinced he was right and was not worried about the concerns of others or he failed to understand and appreciate and/or acknowledge the Indiana Rules of Professional Responsibility,” Judge David wrote. “Had he acted more pro-actively, the practice complained of would have ended long before it did.”

In recommending a penalty for the Supreme Court to consider, Judge David wrote that a public reprimand is warranted. He also wrote, alluding to the Indiana Prosecuting Attorneys Council, “In addition, it is also recommended that the practice that was common in Delaware County, as evidenced in this matter, be soundly denounced and that some entity (mostly likely IPAC) undertake efforts (to the extent IPAC has not already taken the lead on this matter) to insure that this practice is not occurring anywhere else.”

Judge David wrote that civil forfeiture proceedings vary between counties, though Indiana Code 34-24-1-3(a) permits prosecutors to handle those proceedings in-house with deputy prosecutors, while I.C. 34-24-1-8 also allows prosecutors to contract those cases to outside counsel. The latter is the most prevailing model used in these arrangements, Judge David pointed out, but McKinney didn’t use that method.

Making the case even more interesting for the legal community is one of the arguments raised in the prosecutor’s defense – that the judiciary doesn’t have the constitutional authority to discipline an elected prosecutor, who is a member of the executive branch and protected by the separations of powers doctrine.

McKinney’s attorney, Kevin McGoff with Bingham McHale in Indianapolis, argued that sanctioning the prosecutor would violate both the U.S. Constitution and Indiana Constitution Article 3, §1 on government powers. In his proposed findings to Judge David earlier this year, McGoff cited Ind. Alcohol Beverage Comm’n v. McShane, 354 N.E.2d 259, 268 (Ind. Ct. App. 1976), that held a court can’t try to control an executive agency’s discretionary powers.

Judge David didn’t address that separation of powers argument in his report, and McGoff said he wasn’t sure how that might be used in the future before the Supreme Court. He declined to get into whether that argument might dictate contesting any recommended sanction, regardless of it being a reprimand or more severe suspension.

“At this point, we are just taking a step back and reflecting on the case and where it is now,” McGoff said. “We have until the end of October to make a decision on what we want to do, and there are many issues to think about. Whatever decision is made ultimately (on how to proceed), it’s up to my client.”

Some of that decision-making could come down to action the state justices took last year when rejecting the agreement that called for a 90-day suspension. A copy of a notice issued by the appellate clerk’s office to the parties June 18, 2009, is available online at the Indiana Law Blog and says, “Specifically, a majority of the Court concluded that the agreed discipline, that being suspension from the practice of law for 90 days with automatic reinstatement, is insufficient in light of the misconduct agreed to by the parties.”

Details on that proposed agreement or the majority vote for a more severe penalty are not public according to court rules, said Appellate Clerk and Supreme Court Administrator Kevin Smith. That leaves open questions about how the justices will respond once they get the recommendation for a public reprimand.

McGoff and discipline commission attorney Charles Kidd both told Indiana Lawyer in the week following the Sept. 29 recommendations that they hadn’t factored in the court’s makeup with a new justice and that hadn’t been a part of their decision-making at this point. They also declined to discuss the rejected agreement from last year, citing confidentiality rules.

“We don’t let that influence our decisions on that and (the lineup of justices) isn’t something that we are considering,” Kidd said.

Any review request on McKinney’s behalf is due Oct. 29, and the disciplinary commission has a month to file a response followed by McKinney having 15 days to file a response brief. The briefing puts the appeal into mid-December, and McGoff said the holidays will likely slow the review process even more so that a decision won’t come until sometime in 2011.

McKinney, who’s been practicing law since 1991, is nearing the end of his first term as prosecutor and he won’t be back after losing the primary election in May – meaning a disciplinary decision will likely come down after he leaves offices.•

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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