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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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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