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Saturday, June 21, 2008

Ind. Courts - Supreme Court issues emergency order re handling of forfeiture cases in Muncie

The ILB has two entries in late May under the heading "McShurley vs. McKinney feud lands in Indiana Supreme Court," quoting from stories in the Muncie StarPress. A quote from the May 28th StarPress story:

McShurley, a Republican, last week filed a formal ethics grievance against McKinney, a Democrat, with the Indiana Supreme Court's disciplinary commission alleging he deceived local courts while handling forfeiture cases involving thousands of dollars in money and assets seized from drug dealers.

In doing so, McShurley alleged, McKinney diverted money toward the Muncie-Delaware County Drug Task Force that rightfully belonged to the City of Muncie general fund.

Today Rick Yencer of the StarPress has two stories that all in all the ILB found somewhat confusing.

In the first, Yencer reports under the headline "Audits show city never received any money from drug seizures." Some quotes:

MUNCIE -- For the last decade, not a dime of money or property seized by the Delaware County-Muncie Drug Task Force was ever deposited in the city's general fund, according to State Board of Accounts audits.

Instead, that money went for expenses to the Delaware County prosecutor's office that handled forfeiture cases, city police gym, supplies and vehicles for DTF and other law enforcement and favorite charities like Yorktown Football Youth Drug Awareness program and Muncie Pirates Baseball League.

An SBA finding for last year, read by Delaware Circuit Court 2 Judge Richard Dailey during a forfeiture hearing on Friday, also indicated the DTF deposited some of the confiscated money into a checking account and that its balance had not reconciled to the bank balance, leaving a $3,567 deficit.

State examiners, as they had in previous audits, again cited state law requiring property and money seized in such arrests must be subject to a court judgment and deposited in the general fund of government employing the law enforcement officer with any process going to common school funds.

And the court has to determine the amount of law enforcement costs that are supposed to be paid from those proceeds.

Dailey, who came under fire from Prosecutor Mark McKinney for reassuming jurisdiction of forfeiture cases, used the audit finding and comments from state examiner Stephanie Heath to explain his activism to review forfeiture cases.

"We are attempting to decide whether fraud has been committed on the court," said Dailey. "The public has a right to know."

More from the story:
McKinney, in a petition filed with the Indiana Supreme Court on Friday, indicated the process of handling forfeiture funds through the DTF had been approved by an Indiana Attorney General's opinion and a written response from the Indiana Judicial Qualifications Commission.

However, [Judge] Dailey pointed out the SBA never approved the practice, repeatedly informing city government that the money had to deposited by court order in local government general funds.

Attorney Michael Alexander, who represents several defendants in forfeiture cases, insists police were guilty of converting seized property and money for DTF and other law enforcement use.

In a second StarPress story today Rick Yencer reports:
The Indiana Supreme Court took emergency action Friday over Delaware Circuit Court 2 Judge Richard Dailey's handling of forfeiture cases to decide whether Prosecutor Mark McKinney and drug task force officers committed fraud.

McKinney filed a petition on Thursday, alleging Dailey exceeded his authority in 54 forfeiture cases by reassuming jurisdiction after Circuit Court 4 Judge John Feick recused himself from the cases. The prosecutor sought to have a special judge named in the hearings.

Dailey planned to continue a hearing Friday from last week to review the forfeiture cases and review scores of confidential agreements used to seize property and money from suspected drug dealers before McKinney sought the supreme court's intervention.

Chief Justice Randall Shepard, after conferring with other justices Friday morning, issued an emergency order allowing Dailey to proceed with forfeiture hearings, but told the judge to refrain from any orders in those cases until the court decides the jurisdictional issue.

The petition cited trial rules that the judge violated and alleged bias by Dailey's court staff and attorney Michael Alexander, who represented several defendants in the forfeiture cases where DTF officers seized hundreds of thousands of dollars and property during the last decade and never deposited in local government general funds or school common funds, a violation of state law.

McKinney claimed Dailey's court bailiff Cathy Bennington publicly supported Alexander and criticized members of the prosecutor's staff that cooperated in the FBI investigation into Alexander's pending conspiracy to commit bribery trial.

The petition also alleged Dailey violated judicial conduct codes by receiving evidence and conducting hearings outside of trial rules.

"I don't want to stop the hearing," said McKinney. "I just want a judge with property jurisdiction to conduct them, and conduct them in a fair and impartial manner."

The Indiana Supreme Court gave all parties until July 1 to file briefs and information on the jurisdictional issue raised by McKinney, so the court could decide on whether to grant or deny the request for special judge.

McKinney also filed a motion in Dailey's court to change venue on the forfeiture cases, while city attorney Charles (Chic) Clark, filed action to seek a special prosecutor in the cases.

BTW, Mayor McShurley's last name comes up near the end of the seond story, but the context is missing.

Posted by Marcia Oddi on June 21, 2008 10:11 AM
Posted to Ind. Sup.Ct. Decisions