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Prosecutor faces disciplinary charges

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Delaware County Prosecutor Mark R. McKinney faces disciplinary charges that he violated four professional conduct rules stemming from his role as a private attorney on civil forfeiture matters related to the criminal defendants he handled as a deputy prosecutor on behalf of the state.

The complaint verified May 8 by the Indiana Supreme Court's Disciplinary Commission, says McKinney's conduct presented a conflict of interest and stood in the way of justice. The allegations say that his profiting in drug forfeiture cases - fee agreements show he was paid 25 percent of the money forfeited by or seized from drug defendants - impeded the state's criminal cases that he was involved in prosecuting.

He is accused of violating Indiana Professional Conduct Rules 1.7(b); 1.7(a)(2); 1.8(l); and 8.4(d).

Before becoming prosecutor in January 2007, McKinney was a deputy prosecutor beginning in 1995 and worked with the now-disassembled Muncie-Delaware Drug Task Force (DTF) with which he was personally involved in drug investigations of many of the resulting criminal cases. From 2000 to 2007, he also profited through compensation based on the value of contracts with defendants and attorney fees for his private practice work of suing for the forfeitures of criminal defendants' property, according to the complaint.

"Respondent criminally prosecuted defendants while at the same time (he) pursued civil forfeiture against those criminal defendants' cash and/or property knowing that Respondent would invoice and receive a 25 percent fee on the forfeited amount," the complaint states.

No evidence exists that McKinney ever agreed to offer a plea agreement to lesser charges or that he ever agreed to charge anyone for lesser crimes in exchange for money, the complaint notes.

"There is no evidence of any quid pro quo. Nonetheless, there was a significant risk that the Respondent's representation of the State as Prosecutor or DPA would have been materially limited by his personal financial interest in (confidential settlement agreements) or the outcomes of civil forfeiture actions," the complaint states.

In a news release, McKinney's attorney, Kevin McGoff with Bingham McHale in Indianapolis, said his client has cooperated with the commission on this matter from the start and he's accepted responsibility and agreed to a resolution of the charges. Details of that conditional agreement aren't public, and the Indiana Supreme Court can agree to those terms or issue another penalty as it sees fit, McGoff noted.

This disciplinary case came up after Mayor Sharon McShurley took office in 2008 and filed an initial grievance, following up on years of audits that found assets of civil drug forfeitures were diverted to funds for Muncie police and the former drug task force, instead of local government or state school funds - even as McKinney and other collected legal fees and a percentage of the seizure handling civil forfeiture cases.

A day before this disciplinary commission filing last week, Special Prosecutor Barry Brown from Monroe County cleared McKinney of any criminal wrongdoing in his handling of the drug forfeiture cases.

"There appears to have been a good faith effort by Mark McKinney to comply with the Indiana legislative statutory provisions as well as adhere to the practices and protocols of asset forfeiture as they existed in Delaware County at the time Mark McKinney served as deputy prosecuting attorney and prosecutor," Brown wrote in the order.

Although these were the same actions examined by the Disciplinary Commission, the two inquiries were independent of one another. An investigation of the same subject by Delaware Circuit 2 Judge Richard Dailey earlier this year ended after McKinney filed an appeal and the parties agreed the orders issued requiring him to repay money would be vacated and the matters dismissed.

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