A Kent County grand jury on Monday re-indicted State Auditor Kathleen McGuiness after prosecutors abandoned an earlier indictment in New Castle County.
McGuiness has again been charged with two felonies and three misdemeanors:
- Conflict of interest: Violation of the State Officials’ Code of Conduct (misdemeanor)
- Theft (felony)
- Structuring: Non-compliance with procurement law (misdemeanor)
- Official misconduct (misdemeanor)
- Intimidation (felony)
McGuiness was originally indicted by a New Castle County grand jury in Oct. 2021.
In March 2022, her indictment was updated with new allegations that she threatened employees and potential whistleblowers while creating a hostile work environment.
On Tuesday, McGuiness’s attorney, Steve Wood, claimed the state indicted her in the wrong county.
“Venue” is the proper or most convenient location for a trial. Rule 18 of the Superior Court says that in most cases, a prosecution must be held in the county where a crime is alleged to have been committed.
Wood argued that because McGuiness’s office is in Dover, which is in Kent County, the indictment should have been brought forth by a grand jury there — not by a New Castle County grand jury.
Prosecutors from the Delaware Department of Justice said because McGuiness is a statewide elected official, her alleged conduct affects all three counties. It’s fitting to have the trial in the state’s most populous county, they said.
Superior Court Judge William Carpenter said he would allow the trial to proceed in New Castle County but warned prosecutors that they would have to prove that as the proper venue for the trial.
If, after presenting the evidence, prosecutors failed to prove that New Castle County was the proper venue, they’d risk the case being thrown out.
Ultimately, prosecutors decided to withdraw their indictment and ask a grand jury to reindict her in Kent County, which they did Monday.
Wood indicated in court last week that he plans to file a motion to dismiss the case alleging unnecessary delay, pursuant to Delaware Superior Court Rule 48(b).
Rule 48(b) reads, “If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer in Superior Court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.”
Prosecutor Mark Denney “believes this case can begin as soon as Tuesday in Kent County,” he said in a letter to Carpenter last week.
In a statement Wednesday, Carpenter didn’t comment on the possibility of beginning the trial Tuesday, instead saying he “will confer with counsel in establishing a new date for trial.”
This is a developing story. Check back for updates.
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