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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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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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