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Ex-prosecutor gets 4-month suspension

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Former Delaware County Prosecutor Mark McKinney has been suspended for 120 days, the Indiana Supreme Court announced Thursday. The suspension begins July 28, with automatic reinstatement upon its conclusion, subject to the conditions of Admission and Discipline Rule 23(4)(c).

In issuing its opinion on In The Matter of Mark R. McKinney, No. 18S00-0905-DI-220, the court held that McKinney created a conflict of interest by simultaneously prosecuting drug offender cases while pocketing assets seized from defendants in those cases.

McKinney was a Delaware County deputy prosecutor from 1995 until he became the county’s prosecutor in 2007. McKinney worked in conjunction with the now-defunct Muncie-Delaware County Drug Task Force to bring drug-related criminal cases to court. In 1995 and 2004, McKinney and former Delaware County Prosecutor Richard Reed entered into written fee agreements that guaranteed McKinney 25 percent of any civil forfeiture action that he brought, under a statute currently codified at Indiana Code 34-24-1-1, et seq.

The disciplinary action said Reed had contemplated the same deputy prosecutor should handle both the criminal case and the associated forfeiture case, and he concluded the criminal case would end before any resolution of the forfeiture case. Otherwise, the costs associated with the criminal case would not be known. But the justices stated that in many instances, criminal cases were open while related civil forfeiture actions were also open. McKinney also, at times, engaged in plea agreement negotiations knowing that he would receive compensation as the result of an action.

Beginning in 2002, McKinney used what he called Confidential Settlement Agreements to transfer seized property, including cash, from criminal defendants to the city of Muncie through private agreement by the parties without court supervision or public disclosure. He then invoiced the city of Muncie and collected 25 percent of the money transferred, which he based on his interpretation of the fee agreements he had created with Reed. In some instances, McKinney was engaged in CSA negotiations while the corresponding criminal cases were open.

 “Although there is no evidence in this case that Respondent made any explicit quid pro quo offer of favorable treatment to any criminal defendant in exchange for the forfeiture of property from which Respondent would be compensated, it would doubtless be evident to such a defendant, and to his or her attorney if represented, that prosecutorial discretion in how to proceed with the criminal case was held by one who stood to reap personal financial gain if the defendant agreed to the forfeiture of his or her assets. Respondent's misconduct created an environment in which, at the very least, the public trust in his ability to faithfully and independently represent the interests of the State was compromised,” the justices wrote.

Indiana Supreme Court Justice Steven David did not participate in the Supreme Court’s deliberations. Justice David was a Boone Circuit judge when he served as hearing officer in McKinney’s disciplinary case that began in December 2009. In 2010, he recommended a public reprimand as suitable punishment for McKinney.

The Supreme Court found McKinney in violation of Indiana Professional Conduct Rules 1.7(b), 1.7(b)(2), 1.8(1), and 8.4(d).

Justice Robert Rucker dissented with the sanction imposed by the court, preferring a public reprimand, but otherwise concurred with the majority’s findings.
 

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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