Judge acquits McGuiness on one count, denies new trial

Democrats resume call for state auditor to resign
August 31, 2022

State Auditor Kathy McGuiness will face sentencing on two misdemeanors and will not get a new trial following a Superior Court decision Aug. 30.

McGuiness’s attorney, Steve Wood, filed motions of acquittal before a jury found the auditor guilty of three misdemeanors July 1, and then filed a motion for a new trial following the jury decision.

In the latest court action, Superior Court Judge William Carpenter Jr. ruled that the jury’s decision to find McGuiness guilty of conflict of interest and official misconduct will stand, but Carpenter acquitted her on the guilty count of structuring payments in violation of state law. Carpenter also denied Wood’s motion for a new trial.

Wood said he and McGuiness are grateful for the acquittal because the structuring charge was nonsense. But, he said, they are disappointed she was not acquitted on the two charges related to hiring her daughter because the state never proved her daughter received special benefits.

“Delaware law does not prohibit the hiring of close relatives,” he said. “The practice is common throughout state government, and there are at least four current members of the General Assembly whose children work at Legislative Hall.”

Wood said he plans to appeal the convictions to the Delaware Supreme Court after sentencing. “We will point out the legal and factual errors that led to her being wrongly convicted for a crime that she did not commit,” he said.

McGuiness continues to run for re-election, despite repeated calls by Democratic leadership for her to step down. The Democrat, first elected in 2018, is the first sitting official in Delaware history to be indicted, tried and found guilty while still in office. McGuiness was indicted in 2021 on felony counts of theft and intimidation in addition to the misdemeanors. A nearly three-week trial ended in guilty verdicts on three misdemeanors and not guilty verdicts on the felonies.

McGuiness faces Democrat challenger Lydia York in the Sept. 13 primary.

A sentencing date has yet to be set. McGuiness could face up to a year in prison for each count.

Judge’s opinion

In denying Wood’s request to acquit the charges of conflict of interest and official misconduct, Carpenter laid out his reason for both counts.

“[McGuiness’s] conduct was required to be consistent and in compliance with that set forth in [Delaware code], and her failure to exercise reasonable and good judgment here placed her in jeopardy of violating that statute,” Carpenter wrote.

Carpenter said the state proved beyond a reasonable doubt that McGuiness was guilty of conflict of interest by hiring her daughter to work in the auditor’s office.

Carpenter also found that the state proved McGuiness guilty of official misconduct, based on efforts by McGuiness’s daughter and the My Campaign Group consultant to promote McGuiness on social media.

“There was evidence to suggest that [McGuiness] clearly wanted to emphasize her position as the state auditor and it was her name and not the office that would be prominent in all communications that were made public,” Carpenter wrote. 

In denying Wood’s request for a new trial, Carpenter shot down the claim of a Brady violation. A Brady violation occurs when the state fails to provide information that would show a defendant is innocent. Carpenter said state prosecutors had thousands of pages of documents that they had shared with Wood, and the state had offered to delay the trial to allow the defense to review them. Carpenter said the defense never asked for more time to review or search the documents.

“To complain now that she did not have sufficient time to review and prepare for trial is simply unreasonable,” Carpenter wrote.

To further his point, Carpenter denied Wood’s motion for a new trial.

“Cumulative error must derive from multiple errors that caused actual prejudice,” Carpenter wrote. “Here, none of the arguments raised by the defendant were errors that caused prejudice.” 

The defense’s sole victory came in Carpenter’s acquittal of one count of structuring payments in violation of Delaware law. Wood had argued that fragmented payments to a consultant, My Campaign Group, were part of staff turnover and miscommunication during the payment process. Carpenter said overall there was only a few thousand dollars in question, which was a routine accounting error that would have raised no red flags. “As such, the criminalization of the failure to submit a routine accounting form was never intended by the Legislature nor the Division of Accounting,” Carpenter wrote.

McGuiness relied on her staff to pay the consultant bill, Carpenter wrote, but her chief of staff at the time was inexperienced and lacked any degree of reasonable sophistication as to the inner workings of the state’s accounting procedure. 

“Without the appropriate staff familiar with the accounting process, the situation here was simply a comedy of errors and not criminal conduct,” Carpenter wrote.

Based on insufficient evidence to support a conviction for violating state procurement law, Carpenter acquitted McGuiness on that count.

Resignation calls continue

Since the day of her indictment, Democratic leadership has repeatedly called on McGuiness to step down, but she has steadfastly refused, claiming innocence on all charges.

“Hiring family members is not a crime,” she said following the jury’s decision.

Debate over what to do with a resolute McGuiness began in the General Assembly, bounced over to Gov. John Carney’s office, and eventually landed in the Delaware Supreme Court, which outlined the legislative process of removing an elected official from office – a process never done before.

Despite calls for Carney to remove her from office, the governor has declined to do so until the Superior Court enters a judgment of conviction. Once McGuiness is sentenced, an order is entered on conviction.

Senate leadership had convened a special session July 25 in an attempt to start a legislative process to remove McGuiness from office, but the effort quickly died when Speaker of the House Rep. Pete Schwartzkopf, D-Rehoboth Beach, refused to consider it in the House, calling it “political theater.”

Following the latest court action, both House and Senate leadership resumed their calls for McGuiness to resign.

“Now that she has been tried and convicted of multiple crimes and her request for a new trial has been denied, Kathy McGuiness owes it to the people of Delaware to do what is right and step down before she is forced out of the elected office that the Attorney General, a jury and a Superior Court judge all agree she used to violate the public’s trust,” wrote Senate President Pro Tempore Dave Sokola, D-Newark; Senate Majority Leader Bryan Townsend, D-Newark; and Senate Majority Whip Elizabeth Lockman, D-Wilmington.

House Majority Leader Valerie Longhurst, D-Bear, and House Majority Whip Larry Mitchell, D-Elsmere, followed suit with a call for McGuiness to resign.

"If she refuses to do so, the governor is required to remove her from office at the time of sentencing in accordance with the Delaware Constitution,” they wrote.


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