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Saturday, October 02, 2010

Ind. Courts - "Judge David recommends reprimand, not suspension, for McKinney"

Okay, the ILB no longer blogs on the weekends, but there are just too many important stories today - the foreclosures suspension, the errors in courts statistics story, and now this. And at least two more ....

Douglas Walker reports today in the Muncie Star-Press:

MUNCIE -- Mark McKinney "clearly" committed professional misconduct, the judge in the Delaware County prosecutor's disciplinary case has ruled. But the judge has recommended that the Indiana Supreme Court issue only a public reprimand of McKinney rather than suspending his law license.

The state's highest court will have the final say in McKinney's disciplinary case, taking into account the recommendations filed Friday by Boone Circuit Court Judge Steven David -- who will soon join the court. * * *

The court's disciplinary commission has alleged McKinney's dual roles as a prosecutor (for the most part as a deputy prosecutor, prior to his 2006 election) and as attorney in civil forfeiture cases for the Muncie-Delaware County Drug Task Force violated rules of professional conduct for lawyers. * * *

In mid-2009, the Supreme Court rejected a proposed settlement of the McKinney case calling for a 90-day license suspension, apparently indicating that was not a severe enough penalty.

Kidd said Friday the timing of the court's decision could be affected by whether the attorneys involved file responses to David's recommendations.

The parties in the case could file a petition for review or a brief on sanction. The former would indicate one side or the other objects to David's finding. The latter would indicate a disagreement with only the recommended punishment. * * *

Although David's recommendation would appear to be good news for McKinney, the judge's findings of fact -- besides noting mitigating factors that should be weighed in the prosecutor's favor -- notes many aggravating factors that are sharply critical.

"The commission met its burden of proving misconduct by clear and convincing evidence," David wrote.

The judge wrote that on "numerous occasions" McKinney "knew or should have known that the asset forfeiture program and his management of it was being called into question as being unethical."

The Delaware County prosecutor "never himself raised or otherwise thoroughly investigated the real issue everyone was complaining about but instead relied on opinions that were given based upon a lack of information," David wrote. "McKinney was either convinced he was right and was not worried about the concerns of others or he failed to understand and appreciate... The Indiana Rules of Professional Responsibility."

In mitigation, the judge noted the practice of deputy prosecutors handling forfeiture cases had been established before then-Prosecutor Richard Reed hired McKinney in the mid-1990s. He also acknowledged McKinney's participation in community and attorney organizations. And David said there was no evidence of any "quid pro quo" in the prosecutor's dealings with drug defendants who forfeited property.

David also said the manner in which drug forfeiture cases were being handled in Delaware County should be "soundly denounced" and that "some entity... should undertake efforts to ensure that this practice is not occurring anywhere."

The Star-Press also has posted the 25-page ruling of Judge David.

For background, see this Aug. 23, 2010 ILB entry headed "An attorney for the Indiana Supreme Court's disciplinary commission on Friday formally recommended that Delaware County Prosecutor Mark McKinney's law license be suspended for six months." That led to this entry headed "Is a county prosecutor a member of the executive or judicial branch?." Followed by this Aug. 25th entry with some of your responses.

Posted by Marcia Oddi on October 2, 2010 10:15 AM
Posted to Indiana Courts