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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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