The scheduled start of trial testimony in the criminal public corruption trial of Delaware Auditor Kathy McGuiness was delayed Tuesday on a technicality.
The delay could mean the trial starts Wednesday or potentially weeks in the future, depending on how prosecutors decide to proceed. The parties are due back in court Wednesday to discuss their path forward with the judge.
The delay is due to a motion made by Steve Wood, McGuiness’ attorney, ahead of Tuesday’s scheduled start to testimony in the criminal trial, the first for a statewide elected official in Delaware’s history.
Wood moved to dismiss the charges, arguing that McGuiness’ offices are in Dover, so court rules and precedent demand she should be tried in Kent County and not the New Castle County courtroom where members of the public and press had gathered.
In October, a Grand Jury in New Castle County found probable cause to indict McGuiness on two felonies and multiple public corruption misdemeanors based on prosecutors’ claims that she gave her daughter a do-little job in the auditor’s office, rigged payments of a state contract to avoid regulatory scrutiny, and intimidated those who questioned her behavior.
The indictment formalizes the criminal charges against a person and gives them official notice of the charges they face and what conduct prosecutors believe justify those charges.
Typically, criminal defendants are indicted by a Grand Jury in the county in which investigators believed a crime occurred. Prosecutors chose to indict McGuiness in New Castle County as she is a statewide-elected official.
On Tuesday morning, Wood argued to Judge William Carpenter that court rules demand the indictment be issued in the county where the criminal conduct occurred, and, because it was not, that the indictment and case should be dismissed.
Carpenter did not agree with that argument, stating the indictment was sufficient to move forward.
However, Wood also argued that the law demands prosecutors not only prove to the jury the offense occurred and was a violation of law, but they also have to prove that the offense occurred in the county in which the case was indicted.
“At the end of the day, the state could have indicted this case in Kent County and we wouldn’t be standing here today,” Wood told the court.
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Wood told the court he intended to file a motion of acquittal asking the judge to toss the case once prosecutors present evidence that shows none of the alleged crimes occurred in New Castle County.
In response, prosecutors argued that McGuiness’ status as a statewide-elected official whose alleged crimes affected citizens in each of Delaware’s three counties makes the current venue in New Castle County legitimate.
Carpenter indicated that prosecutors arguments “flip” decades upon decades of legal precedence “on its head.” But Carpenter took no official action because a motion of acquittal is made whenever prosecutors finish presenting the evidence they were scheduled to begin putting to a jury Tuesday.
Carpenter said prosecutors’ argument that McGuiness’ status as a statewide official would mean she could be tried anywhere “causes concern.” He likened it to McGuiness being accused of murdering someone in Sussex County and then being tried in New Castle County, stating such would be a “radical change” to centuries of judicial precedent in Delaware.
And so, the situation leaves prosecutors with a choice: proceed with this week’s planned trial testimony and risk the judge invalidating the whole proceeding afterward or drop the indictment against McGuiness and reindict her in Kent County, where the trial would occur at an undetermined date.
Wood also indicated that if prosecutors decide to reindict the case, he will argue it should be thrown out entirely because of prosecutors’ failure to fix the issue and put McGuiness on trial more promptly.
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After Carpenter’s statements, the court adjourned for prosecutors to consider their options. Eventually, the parties were summoned into a back room outside the courtroom to discuss the issue.
When they emerged, Carpenter said he wanted to give prosecutors more time to consider their path forward and assess the feasibility of moving the trial to Kent County.
Both prosecutors and defense attorneys declined comment exiting the courtroom. They are due back in court Wednesday morning to discuss the case’s path forward.
Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareon
