Prosecutor files answer to disciplinary charges

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.