DOVER, Del. (AP) — Prosecutors have dismissed criminal corruption charges against Delaware’s state auditor because of a legal technicality but plan to seek a new grand jury indictment next week, court officials said Wednesday.
The move comes after the defense attorney for Auditor Kathy McGuiness argued in a Wilmington courtroom Tuesday that the case should be dismissed because an indictment obtained by prosecutors last year failed to say where McGuiness’ alleged crimes occurred. Defense attorney Steve Wood said the venue where an alleged offense occurred is among the essential elements Delaware law requires in an indictment.
McGuiness lives in Sussex County and her office is in the state capital, Dover, in Kent County, but prosecutors brought the case in New Castle County.
Prosecutors argued that the indictment was sufficient for trial because McGuiness serves all three counties and her alleged crimes affected all three counties.
Superior Court Judge William Carpenter Jr. appeared skeptical of that argument, noting that, under long-standing Delaware law, the county where an alleged offense occurred is the venue where the case is prosecuted.
Carpenter said basing the venue on McGuiness’ status as a statewide official would be “a pretty radical change.” He suggested that, under the prosecution’s reasoning, McGuiness could be tried in New Castle County for a hypothetical murder in Sussex County because of her status as a statewide official.
Carpenter did not dismiss the indictment, but he noted that if prosecutors opted to proceed in New Castle County, they risked having him grant a defense motion for acquittal after they rest their case if they could not establish proper venue through evidence and testimony. The alternative, he said, was to drop the case and re-indict McGuiness in Kent County, which prosecutors have opted to do.
In a letter to Carpenter late Tuesday, prosecutors said they will be prepared to present the case to a Kent County grand jury Monday and suggested that a trial jury be chosen that same day. The defense is expected to argue that the new indictment should also be dismissed because of the “unreasonable delay” by prosecutors in bringing a proper statement of charges.
McGuiness, a Democrat who was elected in 2018 and filed for reelection last month, is responsible for rooting out government fraud, waste and abuse. She was indicted in October on felony counts of theft and witness intimidation, and misdemeanor charges of official misconduct, conflict of interest and noncompliance with procurement laws. She has denied any wrongdoing.
The charges include allegations that McGuiness hired her daughter as a temporary employee in May 2020, even though other temporary employees had left because of the lack of available work amid the coronavirus pandemic.
McGuiness is also accused of orchestrating a no-bid “communications services” contract for a company she had used as a campaign consultant when running for lieutenant governor in 2016, then keeping the contract payments under $5,000 each to avoid having to get approval from the Division of Accounting.
Authorities also allege that when employees in her office became aware of McGuiness’ misconduct, she responded by trying to intimidate the whistleblowers, including monitoring their email accounts.