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Indiana Prosecutor Disciplined for Conflict of Interest

by Matt Clarke

Delaware County, Indiana prosecutor Mark R. McKinney was suspended from practicing law for 120 days beginning on July 28, 2011. He was disciplined for engaging in professional misconduct by handling criminal prosecutions and civil forfeiture cases involving the same defendants while working as a deputy prosecutor from 1995 until 2006. The reason this was deemed misconduct was that many prosecutors routinely keep most or all of the forfeited money for “law enforcement expenses.” Under the Indiana Constitution, however, such funds are supposed to be turned over to the state’s Common School Fund.

Two other prosecutors have been strongly criticized for similar misconduct, but McKinney’s case was especially egregious because he contracted with the prosecutor’s office as a private attorney to handle forfeiture cases in return for keeping 25% of the seized assets.

The Indiana Supreme Court’s scathing disciplinary order said McKinney’s dual role “created a conflict of interest between his duties as a public official and the private gain he realized in forfeiture proceedings.” Further, “on numerous occasions when the ethics of asset forfeiture proceedings were called into question, [McKinney] turned a blind eye and acted to protect his private interest in his continued pursuit of forfeited property.”

After an investigation by the state Supreme Court’s disciplinary commission determined that McKinney’s actions constituted misconduct, the judge at his disciplinary hearing recommended a public reprimand. The Supreme Court disagreed, opting for the stronger sanction of suspension, noting that “the public trust in [McKinney’s] ability to faithfully and independently represent the interests of the state was compromised” by his actions.

Although the Court’s order said there was no evidence McKinney had “explicitly agreed to offer favorable treatment to a criminal defendant in exchange for money transferred” to him in a forfeiture action, that certainly was a concern. Even if there was no explicit exchange of favors, “it would doubtlessly be evident to such a defendant, and to his or her attorney if represented, that prosecutorial discretion in how to proceed with the criminal case was held by one who stood to reap personal financial gain if the defendant agreed to the forfeiture of his assets.” See: In the Matter of Mark R. McKinney, Indiana Supreme Court, No. 18S00-0905-DI-220.

Thus, McKinney could have agreed to a lesser sentence or a lesser charge for a criminal defendant in exchange for an uncontested asset forfeiture, 25% of which would go into his own pocket, and none would be the wiser. This was especially true after 2002, when McKinney began using “Confidential Settlement Agreements” to obtain seized property and cash “without court supervision or public disclosure.”

In 2009, McKinney was ordered by a circuit court to repay $168,092 in attorney fees and funds obtained by civil forfeiture in drug-related cases. The court said the funds had been seized without a court order in violation of state law. An-other prosecutor, Eric Hoffman, was ordered to return $17,164.

“At the end of the day, civil forfeiture counsel McKinney and Hoffman had control of forfeited assets and directed where they went,” said Circuit Court Judge Richard Dailey.
“These two attorneys were willing to use the legitimacy and authority of the judicial system in pursuit of civil drug forfeitures, but they were unwilling to submit their actions in these agreements to judicial scrutiny.”

Judge Dailey said the prosecutors’ “handling of civil drug forfeitures amounts to fraud on the court.”

However, McKinney’s suspension was not a warning to all prosecutors engaging in similar conduct, according to University School of Law-Indianapolis professor Joel Schumm. That’s because while McKinney’s case was extreme, his punishment was fairly light. “Probably a lot of prosecutors aren’t technically following the law,” Prof. Schumm stated.

The Indiana Prosecuting Attorneys Council and Indiana Attorney General Greg Zoeller have issued opinions supporting the actions of prosecutors who retain forfeited funds for law enforcement purposes rather than transfer them to the Common School Fund, despite criticism from the state Supreme Court and Governor Mitch Daniels.

State Senator Richard Bray introduced a bill (Senate Enrolled Act 215) in 2011 that would allow prosecutors and law enforcement agencies to keep 85% of forfeited assets and remit just 15% to the Common School Fund. The legislation passed, but was vetoed by Governor Daniels on May 13, 2011.

Alas, the Common School Fund, which pays for school construction, charters and technology, has no constituency and prosecutors are, after all, lawyers; thus, the money will most likely continue to pour into the pockets of law enforcement officials and not the state’s schools. According to a 2010 investigation by the Indianapolis Star, only one Indiana county made any significant contributions from forfeited assets to the Common School Fund from August 2008 through July 2010.

“The money is just too great a motivation, and prosecutors and police are going to want to continue keeping basically all of it,” said Indianapolis attorney Paul K. Ogden, who is challenging the constitutionality of the manner in which many state prosecutors handle civil forfeiture cases.

Sources:,, Muncie Star Press

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Related legal case

In the Matter of Mark R. McKinney