Seventh Circuit Allows Lawsuit Alleging Malicious Prosecution of Forfeiture Reform Advocate to Proceed

Mark McKinney, a former Indiana prosecutor who became infamous for personally profiting from asset forfeiture lawsuits, is back in court:

A federal appeals court has revived Indiana criminal defense lawyer Michael Alexander’s lawsuit accusing the U.S. government of conspiring with a state prosecutor and two criminal suspects to falsely accuse him of attempting to bribe a witness.

The U.S. Court of Appeals for the Seventh Circuit on Wednesday reversed Southern District of Indiana Judge Sarah Evans Barker’s April 2012 dismissal of Alexander’s claims. Barker held that Alexander failed to raise a valid malicious prosecution claim and that his intentional infliction of emotional distress claim was time-barred.

Alexander’s June 2011 Federal Tort Claims Act suit claimed that former Indiana state prosecutor Mark McKinney conspired with Federal Bureau of Investigation agents Neal Freeman and James Howell and father-son criminal team Stanley Chrisp and Adrian Kirt, who faced drugs and arson charges, to frame him. He claimed that McKinney nursed a grudge against him because he was a vocal critic of the prosecutor’s handling of drug forfeitures.

He alleged that his February 2008 arrest and was based on false evidence and that the alleged conspirators withheld a tape recording of a July 2006 meeting with Chrisp and Kirtz during which he denied knowledge of his investigator’s alleged bribery of clients.

A Delaware County, Ind., jury acquitted Alexander in March 2009. He filed a notice of his tort claim with the FBI in October 2010 and followed with the lawsuit when the FBI opted not to act on the claim.

Judge Diane Wood wrote Wednesday’s opinion, joined by judges Richard Posner and John Daniel Tinder.

Concerning the malicious prosecution claim, Wood wrote that the allegations are “more than sufficient to assert a causal link between the agents’ actions and the subsequent prosecution.” She added that the complaint adequately pleads malice despite the fact that Alexander hasn’t yet given a reason for the agents’ animosity toward him.

“Unfortunately, in a world where public corruption is hardly unknown, we cannot agree that Alexander’s complaint is too implausible to hold together absent allegations of this sort. We might wish to live in a world in which such an egregious abuse of one’s official position would be unthinkable, but experience suggests that we do not,” Wood wrote.

(Sheri Qualters, Court Revives Defender’s Malicious Prosecution Suit, National Law Journal, 26 June 2013)

In 2011 the Indiana Supreme Court found that:

We find that Respondent, Mark R. McKinney, while serving as a deputy prosecuting attorney, conducted asset forfeiture proceedings in a manner that created a conflict of interest between his duties as a public official and the private gain he realized in the forfeiture proceedings. On numerous occasions when the ethics of the asset forfeiture procedures were called into question, Respondent turned a blind eye and acted to protect his private interest in his continued pursuit of forfeiture property. For this serious attorney misconduct, we find that Respondent should be suspended from the practice of law in this state for 120 days with automatic reinstatement.

…

Respondent prosecuted a variety of criminal cases, including drug offenses. Respondent, while a DPA, worked with the Muncie-Delaware County Drug Task Force (“DTF”) and was personally involved in drug investigations and many of the resulting criminal cases. During arrests and/or the execution of search warrants, the police seized money and other property from drug suspects. Criminal charges were determined by the DPA assigned to the case, and Respondent prosecuted many of the defendants charged with drug crimes.

In addition to his DPA salary, Respondent received attorney fees as a private practitioner for bringing suits for the forfeiture of criminal defendants’ property, as did other DPAs, including Louis Denney. In 1995 and 2004, Respondent and Prosecutor Reed entered into written fee agreements (“Fee Agreements”) under which Respondent would receive an amount equal to 25% of any judgment entered in a civil forfeiture action Respondent brought under a statute currently codified at Indiana Code § 34-24-1-1, et seq.

(In the Matter of Mark McKinney, No. 18S00-0905-DI-220, Ind. Supreme Court, 2011)

While McKinney’s law license was suspended and some restitution was ordered, no criminal charges have been filed, and prosecutors have little to fear from allegations of future misconduct:

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. Another 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.

(Matt Clarke, Indiana Prosecutor Disciplined for Conflict of Interest, Prison Legal News, April 2012)