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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. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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