Ahead of her Wednesday sentencing hearing, Delaware Auditor Kathy McGuiness is again accusing prosecutors of spinning half-truths in order to put her behind bars.
In court filings unsealed Tuesday, McGuiness’ attorney argues that a $1,000 fine is sufficient punishment for her misdemeanor conflict of interest and official misconduct convictions, crimes that were based on hiring her daughter to work in the auditor’s office.
Prosecutors want jail time
Prosecutors have argued that 30 days in prison and $30,000 in restitution is the appropriate sentence for McGuiness, who was also found not guilty of felony intimidation based on spying on her employees’ emails as well as another misdemeanor based on how a state contract by the auditor’s office with a campaign and policy-issues consultant was paid.
In a court filing unsealed Tuesday, McGuiness’ attorney Steve Wood wrote that prosecutors’ argument that the auditor be imprisoned is “poorly-reasoned and unconstitutionally vindictive.” Wood’s sentencing memo touches on McGuiness’ long political history and her family life, claiming again that she didn’t know she was breaking the law when she hired her daughter to work under her in the auditor’s office.
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He wrote that there is “simply no need” for even probation in the case, that McGuiness will leave public office at the end of the year, having lost her primary for reelection in September, and that she does not have the “means, motive or opportunity” to reoffend.
Carney has decision to make
He also noted the fact that Gov. John Carney may remove her from office once she is sentenced Wednesday, a prospect the governor’s spokesperson did not answer questions about this week.
“The imposition of a $1,000 fine on top of the public criticism and political loss that she has already faced—as well as the possibility of removal that she now faces—is punishment enough,” Wood wrote.
On Friday, prosecutors filed documents asking presiding Judge William C. Carpenter to imprison the auditor for 30 days based on her lack of remorse and undue appreciation of her crime.
Prosecutors cited media interviews in which McGuiness has called her prosecution “political” and claimed that hiring her daughter was not illegal and pointed out that elected lawmakers in Delaware have seen their children work for the General Assembly while in office without being prosecuted.
In reply to prosecutors’ recommendation, Wood wrote that McGuiness isn’t admitting guilt because she doesn’t believe she is guilty of a crime and will continue to argue that in appealing her case to the Delaware Supreme Court after sentencing.
“This is by no means a frivolous defense — no one has ever been prosecuted in Delaware for conflict of interest or official misconduct in the many decades since those offenses were codified,” Wood wrote. “It is certainly not obvious — and absolutely was not known to the Defendant at the time—that her conduct was in any way criminal.”
To find McGuiness guilty of conflict of interest, the jury had to be convinced that McGuiness hired and employed her daughter in a privileged way not available to other, similarly situated employees.
In their sentencing memo, prosecutors set out a list of aspects of McGuiness’ daughter’s employment they say were different than other employees. Wood claims prosecutors’ list includes “half truths” and outright “distortions,” imploring the judge to ignore those in his sentencing decision.
Prosecutors also pointed at the fact that McGuiness’ daughter continued to work at the auditor’s office after the auditor was convicted. Wood notes her employment ended about two months after the trial when Carpenter, the judge, ruled upon pending motions to toss some of the charges.
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Wood also compared McGuiness to other instances where prosecutors have successfully pursued official misconduct charges against public officials.
He compared it to former Wilmington City Council President Theo Gregory, who was convicted of official misconduct after being accused of funneling some $40,000 in public money to a non-profit that employed him. He was sentenced to probation.
“To suggest that such an offense is worthy of incarceration strains credulity and raises questions of vindictive prosecutorial conduct in sentencing,” Wood wrote.
McGuiness will be sentenced at 10 a.m. Wednesday in Dover.
Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com. Follow @Ber_Xerxes on Twitter.
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