Prosecutor files answer to disciplinary charges

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Delaware County Prosecutor Mark McKinney has responded to the disciplinary charges he faces in connection to his role as a private attorney on civil forfeiture matters related to the criminal defendants he handled as a deputy prosecutor and prosecutor on behalf of the state, saying his representation of the state wasn't limited by his financial interest in forfeiture actions.

The verified complaint filed by the Indiana Supreme Court's Disciplinary Commission in May 2009 claims McKinney violated four of Indiana's Rules of Professional Conduct - 1.7(b), 1.7(a)(2), 1.8(I), and 8.4(d). The allegations state that his profiting in drug forfeiture cases - he was paid 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.

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. 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.

In his response filed Feb. 4, McKinney denied that his representation of the state as prosecutor or deputy prosecutor was materially limited by a personal financial interest in confidential settlement agreements with defendants or the outcome of forfeiture actions.

The Disciplinary Commission previously had initiated a grievance in 1999 against then-deputy prosecutors McKinney and Lou Denney, and then-prosecutor Rick Reed alleging that McKinney and Denney were paid 25 percent of the value of property seized. McKinney and Reed filed a joint response that year, but no action was taken on those allegations until Muncie Mayor Sharon McShurley filed a grievance in 2008 raising the same issues as the 1999 allegations. McKinney believes this 9-year delay is prejudicial.

McKinney's response says the asset forfeiture program was created by Reed before McKinney joined the office and McKinney acted in good faith in relying on office policy, his supervisors' approval and knowledge, and statutory and legal authority. According to his response, the Indiana Attorney General's Office in 1998 issued an opinion that said local officials and the courts are the legal entities to determine the method of distribution of funds to pay attorneys. The State Board of Accounts, Delaware Circuit Judge Richard Dailey, and the Indiana Prosecuting Attorney's Council also found nothing to suggest there was an ethical problem, according to McKinney's response.

McKinney also asserts the defense that he was allowed by the civil forfeiture statute to be retained to bring an action and the statute infers he would be paid to prosecute those actions on behalf the prosecutor. He also claims the disciplinary charges violate the separation of powers doctrine of the federal and state constitutions.

McKinney was cleared by a special prosecutor of any criminal wrongdoing in his handling of the drug forfeiture cases just a day before the Disciplinary Commission filed its charges in May. An evidentiary hearing is set for July 6 before the hearing officer in this case, Boone Circuit Judge Steve David. McKinney's attorney is Kevin McGoff of Bingham McHale in Indianapolis.


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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.