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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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