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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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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