State Auditor Kathleen McGuiness’s attorney on Thursday asked a judge to consider pretrial motions to dismiss one of the charges she faces and compel the state to hand over information.
The two-hour hearing ended without a ruling by Judge William C. Carpenter Jr. of the Superior Court of Delaware.
Carpenter surprised the defense at the end of the hearing by announcing he didn’t think a May trial would give either side, or the court, time to properly prepare.
If he moves it, he said, it likely will be held in late summer or early fall, but he has not decided.
If it’s moved, the trial could be within just a few weeks of the Sept. 13 state primary election. McGuiness has said she plans to seek a second term.
She faces felony and misdemeanor charges alleging conflict of interest, theft, non-compliance with procurement law, official misconduct and witness intimidation.
She’s accused of arranging public payments to a campaign consultant to avoid regulator scrutiny, firing workers in her office to hire her daughter, who she allowed to use a state car then kept paying while the daughter was in college and not working, and attempting to intimidate employees who might help investigators looking into her conduct.
McGuiness’s attorney, Steve Wood of McCarter & English, filed three motions. The motions ask the court to dismiss count three, felony witness intimidation, and count five, misdemeanor non-compliance with procurement law.
A third motion asks the court to compel the state to provide discovery, or documents, that the defense can use to argue the state is selectively prosecuting McGuiness for activities that are commonplace amongst Delaware elected officials, like hiring family members and securing work and contracts for former campaign contributors.
The judge announced at the beginning of the proceedings that a separate trial will be scheduled in the future to hear arguments about count three.
Relating to count five, Wood argued the indictment against McGuiness came in Sept. 2021 and the investigation, according to prosecutors, was ongoing for nearly a year prior to the indictment.
McGuiness, however, only became aware of the investigation in September after a search warrant was executed at her office.
The witness intimidation charge alleges that McGuiness knowingly and with malice attempted to prevent or dissuade a witness or victim from attending or giving testimony at any trial, proceeding or inquiry authorized by law.
Such intimidation, Wood argued, requires the defendant to be aware of an investigation and then attempt to prevent or dissuade a witness or victim from participating.
Because the indictment alleges some of the acts of intimidation occurred prior to McGuiness becoming aware of the investigation, Wood said it does not meet the standard set in the Delaware Criminal Code.
Deputy Attorney General Mark Denney, who is prosecuting the case, said felony witness intimidation does not require a defendant to be aware of an active investigation or trial.
Instead, he said, the defendant must only be aware that they engaged in criminal misconduct. Any subsequent intimidation would therefore meet the legal standard.
Carpenter seemed to agree that if McGuiness was not aware of an investigation, she could not know that witnesses even exist and thus could not meet the legal standard for witness intimidation — at least until she became aware of the investigation in Sept. 2021.
The state updated the indictment last week to include an accusation that McGuiness threatened to intimidate employees after Sept. 2021.
The updated indictment alleges McGuiness encouraged employees to yell out loud “confidentiality” as the office’s motto during staff meetings.
“On or about February 11, 2022, DEFENDANT called an all-staff meeting,” the updated indictment reads. “DEFENDANT was displeased that, in her belief, information was leaking from the OAOA. She told them that she used to have the staff yell out loud, ‘Confidentiality!’ and that ‘confidentiality’ means ‘what happens in this office, stays in this office.’ Near the end of the meeting, DEFENDANT warned, ‘We are gonna have a zero tolerance for negativity.’”
Wood argued that the importance of confidentiality was expressed at every staff meeting since her election as state auditor and is meant to protect the work of the office, not to serve any personal interest for McGuiness. Such emphasis on confidentiality is integral to the office’s work, he said, and is not meant to intimidate.
Relating to the motion to compel discovery, Wood asked the court to force prosecutors to hand over information detailing which other state elected officials have hired immediate family members to work for their agencies and engaged in contracts just beneath the oversight and approval threshold.
With that information, Wood hopes to prove that the Department of Justice is specifically targeting McGuiness for prosecution despite the alleged activities being commonplace in state government, and rarely, if ever, prosecuted.
Denney said nepotism is not illegal and neither is hiring outside contractors, but what is illegal is providing benefits to family members which other similarly situated employees do not receive, and intentionally structuring payments to avoid scrutiny.
The judge is expected to rule on both motions sometime Thursday, but as of 2 p.m. nothing had been filed. A separate trial will take place to consider the motion to dismiss the non-compliance charge.
Carpenter said at the end of the proceedings that he is concerned the May 16 date for the trial to begin will not give each side, or the court, enough time to prepare.
Wood protested, saying the defense is ready to proceed and the trial should not be delayed only because the state is unprepared to argue its case.
Carpenter said such decisions are at the discretion of the court.
“I know Ms. McGuiness would like this to be behind her, and there are reasons for that,” he said.
The Democratic Party is likely to have a candidate to challenge McGuiness in that election. The general election will be held on Nov. 8, 2022.
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