The case before Delaware's Supreme Court over former Auditor Kathy McGuiness' conviction

2023-11-15 438, 2022 McGuiness v. State from SUPREME COURT STATE OF DELAWARE on Vimeo.

Former Delaware Auditor Kathy McGuiness took her appeal Wednesday to the Delaware Supreme Court, asking the court to overturn her misdemeanor public corruption conviction from last year.

In arguments before the state's highest court, McGuiness' defense attorney called her conviction "profoundly unfair and unconstitutional."

Last year, McGuiness became the first sitting, statewide public office holder to be convicted of criminal charges when a jury found her guilty of conflict of interest and official misconduct, two misdemeanors, tied to her hiring her daughter as a part-time employee in the auditor’s office. She was acquitted of a felony theft charge tied to her daughter’s employment.

She was also found guilty of structuring, a misdemeanor tied to the way a consultant was paid pursuant to a state contract with the auditor’s office. That charge was later invalidated by presiding Judge William C. Carpenter, who is now retired. The jury also found McGuiness not guilty of a felony witness intimidation charge.

She was sentenced to probation and lost her fall primary for reelection. Separately, she has sued Attorney General Kathy Jennings, claiming the state's top prosecutor defamed her and violated her constitutional rights through the prosecution.

In appeal briefs filed earlier this year, McGuiness made eight separate legal arguments seeking to overturn her conviction. The state responded in legal filings earlier this year.

Editor's note: Copies of the full appeal briefings are at the end of this story. A video of Wednesday's Supreme Court arguments is at the top of this story and can also be accessed at this link.

Wednesday's hearing was a brief chance for the parties to make their case to the Supreme Court justices and for those judges to ask questions of the attorneys regarding how the parties feel the facts fit into legal precedent.

Investigative technique or a lie?

Wood led his address to the justices with McGuiness' argument that statements made by Judge William C. Carpenter were an unconstitutional strike against McGuiness' defense: that the investigation into the auditor was "biased and sloppy."

During last year's trial, Wood questioned lead investigator Frank Robinson about him telling people he was interviewing in the investigation that he was looking into how state agencies managed employees during the pandemic. With Robinson on the stand, Wood pressed the point that this was a lie, but the line of questioning was cut off by Carpenter, who said such a statement was a law enforcement "investigative technique."

"To imply that because this is false, he is lying. That’s simply unfair," Carpenter said to Wood in the presence of the jury.

At Wednesday's hearing, Wood told the justices that it is unconstitutional for a judge to comment on the credibility of a witness and his statement was a "dagger at the heart of the defense."

In response, David C. McBride, a partner at Young Conaway Stargatt & Taylor, hired to represent the state in its appeal, told the justices the judge's statement was not an error and was within his discretion overseeing the trial.

"What the judge was saying was: 'Quit wasting time with the witness,'" McBride told the justices.

At trial, Robinson's role in the investigation was Wood's primary avenue to paint the investigation into the auditor as sloppy and unfair.

Ahead of trial, the court ruled that Robinson had signed a search warrant affidavit that contained incorrect information about the evidence regarding one of the charges against McGuiness.

On the briefs: Delaware auditor's criminal prosecution was historic. Appeal will determine if it was fair

At trial, Wood sought to learn the identity of individuals responsible for the information in that affidavit, but the line of inquiry was cut off by Carpenter. In appeals briefings, Wood argued this was also unfair and cause to overturn the conviction.

At Wednesday's hearing, Justice Gary F. Traynor questioned how such information could be exculpatory.

Wood replied that the trial strategy was to show "bias" and if officials higher up in the Attorney General's office were responsible for the false information, that argument becomes more "poignant."

In its reply brief, the state argued that McGuiness was given plenty of time at trial to paint the prosecution as untrustworthy, that such an inquiry into bias into the investigation was based on "speculation" and that the court acted appropriately at the time.

Document dump

Wood also argued that the state hamstrung his defense by their transmission of some 500,000 digital files months after a court-imposed deadline and six weeks before the scheduled trial start date. The evidence was seized in a search warrant targeting digital files in the auditor's office.

Ahead of the trial, Carpenter sanctioned the state by restricting its use of that information, but Wood argued this was an insufficient remedy that prevented McGuiness from making use of exculpatory evidence relevant to the conflict of interest charge.

Wood called it the largest such evidentiary violation by volume of documents in the state's history.

CONVICTION TOSSED: State auditor has two criminal guilty verdicts upheld, one tossed ahead of election

Traynor, the justice, noted that Carpenter offered to delay the trial so Wood could make use of the information and asked why that shouldn't figure into the court's analysis.

Wood replied that Carpenter could only offer a delay that would have put the trial date beyond McGuiness's looming Democratic primary as the state was already trying to remove her from office.

McBride told the justices that information relevant to the conflict of interest charge had been turned over to McGuiness in a timely manner and that the jury saw the appropriate evidence needed to reach a fair verdict, a point Wood contested.

The state has also argued in its briefs that the information at issue was derived from files that actually belonged to McGuiness and so much of it was already in her possession.

Prejudicial spillover?

Some of McGuiness' appeal centers on evidence presented in support of charges of which she ultimately wasn't convicted.

McGuiness was acquitted of felony witness intimidation, and a misdemeanor known as structuring was thrown out by Carpenter after the jury heard relevant evidence and voted to convict her.

In order to find McGuiness guilty of witness intimidation, prosecutors need to show that she took steps to intimidate people who could have been witnesses in an official proceeding against her. And so, they had to convince the jury that McGuiness knew she was under investigation when the accused intimidation occurred.

Wood said evidence of her conduct that predated her knowledge of the investigation was improperly allowed into court, reflected poorly on his client and amounted to "death by 1,000 cuts."

The state has argued in its briefs that the jury was able to properly assess evidence and whether McGuiness knew she was under investigation because she was acquitted on the witness intimidation charge.

Wood made a similar argument regarding evidence in the structuring charge and told the justices the evidence was "extremely prejudicial" and should have never been allowed in front of the jury.

Justice Karen Valihura asked McBride specifically about the structuring charge and whether it may have contributed to her conviction on other charges.

McBride denied that the evidence relevant to the structuring charge was improperly presented because it also formed the basis of the official misconduct charge.

He said "one of the theories" of that misdemeanor paralleled the structuring charge and was that McGuiness hired a political consultant to "provide political advice" and did so at the "expense of the state."

At the end of the hour-long hearing, the justices recessed to consider the issues. The Supreme Court is expected to issue its ruling on the appeal in the coming weeks or months.

Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com.

Opening brief: State v. McG... by Xerxes Wilson

This article originally appeared on Delaware News Journal: Delaware Supreme Court hears former Auditor Kathy McGuiness' appeal