Del. auditor’s charges dismissed due to technicality, new indictment sought
DOVER, Del. – Prosecutors have dismissed criminal corruption charges against Delaware’s State Auditor due to a legal technicality but say they plan to seek a new grand jury indictment next week.
On Tuesday, the defense attorney for Kathy McGuiness reportedly argued in a Wilmington courtroom that the case should be dismissed because an indictment obtained by prosecutors last year failed to say where McGuiness’ alleged crimes occurred. Defense Attorney Steve Wood said that the venue where an alleged offense occurred is one of the essential elements that state law requires in an indictment.
McGuiness lives in Sussex County, and her office is in Dover, Kent County, but prosecutors brought the case in New Castle County. We’re told prosecutors argued that the indictment was sufficient for trial because McGuiness serves all three counties and her alleged crimes affected all three counties.
Superior Court Judge William Carpenter Jr. reportedly appeared skeptical of the argument, noting that under long-standing Delaware law, the county where an alleged offense took place is the venue where the case is prosecuted. Carpenter said that basing the venue on McGuiness’ status as a statewide official would be “a pretty radical change”, and suggested that under the prosecution’s reasoning, McGuinness could be tried in New Castle County for a hypothetical murder in Sussex County due to her status as a statewide official.
While Carpenter did not dismiss the indictment, he noted that if prosecutors opted to proceed in New Castle County, they risked having him grant a defense motion for acquittal after they rest their case if they could not establish proper venue through evidence and testimony. He said the alternative was to drop the case and re-indict McGuiness in Kent County, which we’re told prosecutors have opted to do.
Prosecutors wrote a letter to Carpenter late Tuesday, stating that they will be prepared to present the case to a Kent County grand jury on Monday and suggested that a trial jury be chosen that day. The defense is expected to argue that the new indictment should also be dismissed due to the “unreasonable delay” by prosecutors in bringing a proper statement of charges.
McGuiness was indicted in October on felony counts of theft and witness intimidation, as well as misdemeanor charges of official misconduct, conflict of interest, and noncompliance with procurement laws. She has denied any wrongdoing. The charges allege that McGuiness hired her daughter as a temporary employee in May 2020 even though other temporary employees had left because of the lack of available work due to the pandemic. McGuiness is also accused of orchestrating a no-bid “communications services” contract for a company she had used as a campaign consultant when running for Lieutenant Governor in 2016, then keeping the contact payments under $5,000 each to avoid needing approval from the Division of Accounting.
It is also alleged that when employees in McGuiness’ office became aware of her misconduct, she tried to intimidate the whistleblowers, including monitoring their email accounts.
