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Last week, I covered the case of Michael Alexander, an Indiana defense attorney who has filed a federal lawsuit alleging that former Delaware County prosecutor Mark McKinney conspired with the FBI to file false bribery charges against Alexander in retaliation for Alexander’s vocal criticism of Indiana’s asset forfeiture regime.

Today, we’re waiting to hear the results of a hearing of the Indiana Supreme Court Disciplinary Committee in the case of Paul Odgen (you may remember Odgen’s 2011 lawsuit against Indiana prosecutors who were illegally keeping proceeds from asset forfeiture). Odgen now faces two accusations that the Disciplinary committee must decide on, one stemming from his advocacy on the forfeiture issue:

The other charge against me also touches on speech.  At the conclusion of civil forfeiture proceedings, when the defendants are out of the case and the government is dividing up the proceeds, the judge is supposed to make a determination of law enforcement costs on a case-by-case basis with the balance above costs going to the Common School Fund.   Yet for years no Marion County judge has ordered money to be paid to the Common School Fund.

Judges appear to simply be signing off on whatever order they are given by the prosecutor at the end of the case.  I believed that the judges simply do not know the obscure statute and fairly recent Supreme Court case reiterating the duty of a judge to determine law enforcement costs in a civil forfeiture case on a case-by-case basis with the remainder going to the Common School Fund. (The DC attorney opined in my conversation with him that the Marion County judges know the law, but that they are “just lazy,”)  I reviewed the disciplinary rules to make sure I wasn’t violating any of them, and sent a letter to the judges outlining the law regarding the division of civil forfeiture proceeds.  (I also wrote a blog article on the subject of judges not following the rules on division of civil forfeiture proceeds.)  I had no forfeiture cases before any of the judges and to make certain I wasn’t accused of some sort of improper ex parte communication, I copied the letter to the prosecutor, the Attorney General and the Public Safety Director, the very people involved, at trial or on appeal, for the very issue I was addressing in the correspondence.

For that I was charged with improperly trying to influence a judge by ex parte communication.  The Commission’s position is that the only way judges can learn about the law is through court filings.  (Though the Commission’s attorney admits there is a service which tries to keep judges updated about legal developments.)  That simply isn’t the case.  If that were true, an attorney sitting down to talk to a judge over lunch and discussing the law would be violating the rules.  An attorney making a legal point at a CLE seminar where a judge is present could be violating the rules.  An attorney sending a judge an interesting law review article would be violating the rules.  The charge simply has no merit whatsoever. (Paul Ogden, Attorney Free Speech and My Hope for Reform of the Disciplinary Process, Ogden on Politics, 29 Jul 2013)

There are not many attorneys who vigorously challenge abuses of power by prosecutors, especially when asset forfeiture is concerned. The efforts by Indiana prosecutors to squelch the dissent of attorneys like Paul Ogden and Michael Alexander are likely to have a chilling effect on the future speech of other forfeiture reform advocates with a bar membership and should be roundly condemned by all as a violation of the rights to free speech.

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