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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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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