Discipline case poses questions on recusals, separation of powers

Back to TopE-mailPrintBookmark and Share

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.•


Sponsored by
Subscribe to Indiana Lawyer
  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.