DOVER, Del. (AP) — The judge presiding over the criminal corruption trial of Delaware State Auditor Kathy McGuiness limited or prohibited testimony from several prosecution witnesses Tuesday after the defense attorney complained of prosecutors trying to engage in a “trial by ambush.”
Superior Court Judge William Carpenter Jr. disallowed testimony from one prosecution witness and set parameters on the testimony of three others.
Defense attorney Steve Wood argued that certain testimony from the witnesses should be prohibited because it involved alleged conduct not included in the indictment against McGuiness or involved matters for which the witnesses would have no personal knowledge.
McGuiness, a Democrat elected in 2018, is responsible for rooting out government fraud, waste and abuse. She faces felony counts of theft and witness intimidation, and misdemeanor charges of official misconduct, conflict of interest and noncompliance with procurement laws.
Prosecutors allege, among other things, that McGuiness hired her daughter and a friend as temporary employees in 2020, even though other temporary employees had left because of the lack of available work amid the coronavirus pandemic.
Prosecutors also say McGuiness, in her role as auditor, orchestrated a no-bid “communications services” contract for My Campaign Group, which she had used as a campaign consultant when running for lieutenant governor in 2016, then deliberately kept the contract payments under $5,000 each to avoid having to get them approved by the Division of Accounting.
McGuiness also is charged with intimidating and retaliating against employees who reported her alleged wrongdoing or who she believed might be cooperating with investigators. Prosecutors allege that the intimidation, which included monitoring employees’ emails, began as early as March 2019, even though McGuiness was not told until September 2021 that she was the subject of a criminal investigation.
On Tuesday, Carpenter prohibited testimony from one former employee who claimed to have done campaign work for McGuiness on state time after Wood noted that the indictment does not mention any such activity.
The judge also limited questioning of two people who were expected to testify about alleged witness intimidation by McGuiness. According to prosecutors, Melissa Schenck, who still works at the auditor’s office, thought she was treated unfairly because officials rescinded approval for her to work from home because of the coronavirus after she showed up at the office to attend an employee luncheon.
Dan Hamilton, a former high-level auditor, was reprimanded for several statements he made about co-workers, including that some of them were “shady” and engaged in a “cover-up” in advance of McGuiness’ trial, and for suggesting in a conversation with male colleagues that a female chief of staff was dressed inappropriately for a budget meeting with state lawmakers. Hamilton was specifically prevented from testifying about a purported investigation he had conducted regarding McGuiness’ use of employee recognition funds. He acknowledged under cross-examination that, apart from the reprimand, he was treated fairly by the auditor’s office.
Carpenter also limited testimony from Andrena Burd, a former employee of the auditor’s office who Wood, the defense attorney, said had “a long-running vendetta” against McGuiness.
Prosecutor Mark Denney told Carpenter that Burd was a critical witness for the state who could offer testimony supporting their claim that McGuiness knew her alleged conduct was wrong. Denney noted that Burd had helped McGuiness in her 2018 campaign before going to work for her and had told her of problems in the office and alleged misdeeds by former chief administrative officer Kathleen Davies, who ran against McGuiness in the 2018 primary.
With the jury out of the room, attorneys questioned Burd and argued over how much of her testimony should be allowed in front of the jury. Carpenter refused to allow certain testimony to be presented to the jury and lashed out at Denney at one point when the prosecutor began shaking his head.
“It is your indictment,” the judge told Denney in a loud voice. “It’s what you wrote. It’s your words.”
“I’m at a loss a little bit as to where we’re spinning this case,” the judge added.
In front of the jury, Burd testified that she had told McGuiness about fragmenting of contract payments during the previous auditor’s tenure to keep them under the reporting threshold, and of the misuse of state credit cards that Burd had discovered while working at Delaware State University between stints at the auditor’s office. Prosecutors will likely rely on that testimony to argue that McGuiness knew about the impropriety of similar conduct in which she later allegedly engaged.
Burd also testified that McGuiness told her at one point to delete text messages regarding Davies, who returned to the auditor’s office in 2019 after being terminated by McGuiness’ predecessor, and told Burd to ask other employees to do the same.
Burd also said she informed a co-worker after discovering that the employee’s email was being monitored by McGuiness.