DOJ responds to McGuiness call for sanctions

Asks judge to deny, and agrees to limit publicity if court orders
October 26, 2021

A motion filed by the Division of Civil Rights and Public Trust Oct. 22 asks a Superior Court judge to deny State Auditor Kathy McGuiness’s request to sanction Attorney General Kathleen Jennings.

“The unique nature of this case warrants transparency in the procedural process and detailed accounting of the alleged criminal acts. Transparency breeds legitimacy, especially in cases involving a matter of public trust,” the motion reads. “None of the attorney general’s comments improperly insinuated guilt. None violated the Delaware Lawyers’ Rules of Professional Conduct. None merit sanction.”

The latest motion is in answer to one filed Oct. 14 by McGuiness, stating rules prohibit a prosecutor from talking about a case before trial, and also violate rules on making extrajudicial comments. 

The comments in question relate to an answer Jennings gave during a press conference Oct. 11 announcing that McGuiness had been indicted by a grand jury on five counts of misconduct while in office including felony theft and witness intimidation.

When asked whether McGuiness had responded to the indictment, Jennings answered that she had not spoken to McGuiness, and that the division had reached out to McGuiness several times, but she declined to speak with them.

The motion states that Jennings’ comment is an accurate procedural account of how McGuiness was provided several opportunities to respond to the charges, but she declined.

The motion states that Jennings did not violate rules on trial publicity or special obligations of a prosecutor as laid out by the Delaware Lawyers’ Rules of Professional Conduct.

“The attorney general did not remotely reference the defendant’s Fifth Amendment rights, nor did she imply in any way that the auditor’s refusal to speak suggests guilt,” the motion reads.

The DOJ motion also provides examples of extrajudicial statements McGuiness’s attorney, Steve Wood, released following her indictment. In those statements, McGuiness says she is innocent of the charges – defending hiring her daughter to work for the office and stating that the witness intimidation charge is pure fiction.

“The obligation to refrain from making misleading statements also applies to defense counsel,” the DOJ motion states. “To guard against further misleading public statements by defendant’s counsel and to ensure integrity in the process moving forward, the State of Delaware does not object to an order limiting pretrial publicity if such an order is applicable to all parties involved.”

McGuiness remains in office, attending public events, despite calls from the Democratic Party for her to resign. Democratic legislative leadership has asked McGuiness to take a leave of absence following her indictment, but has not moved to impeach her.

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