The Delaware Department of Justice will not pursue its prosecution of State Auditor Kathleen McGuiness in New Castle County, according to a spokesman for the court.
“The State has entered a Nolle Prosequi without prejudice and has indicated it will submit the case involving Kathleen McGuiness to the Kent County Grand Jury on Monday, June 6, 2022,” said Sean O’Sullivan, chief of community relations for Delaware Courts.
“If an indictment is returned, the Court will confer with counsel in establishing a new date for trial.”
McGuiness’s defense attorney, Steve Wood, indicated in court Tuesday that if the state decided to reindict McGuiness in Kent County, he would 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.”
The state’s decision to reindict McGuiness means her long-anticipated trial, which was set to begin Tuesday, May 31, will not go on as planned.
In Oct. 2021, McGuiness was indicted by a New Castle County grand jury on five charges alleging the misuse of public funds, felony theft, non-compliance with procurement law, official misconduct and witness intimidation.
In March 2022, McGuiness was reindicted by a New Castle County grand jury. While the charges remained the same, prosecutors updated the felony witness intimidation charge, alleging that she threatened employees, witnesses and potential whistleblowers and created a hostile work environment.
On Tuesday, Wood claimed the state failed to establish proper venue in their indictments.
“Venue” is the proper or most convenient location for trial of a case. 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 official office is in Dover, which is in Kent County, the indictment should have been brought forth by a grand jury there — not 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.
Further, prosecutors said because My Campaign Group — the contractor which McGuiness is accused of improperly paying — is located in New Castle County, that’s sufficient basis to hold the trial there.
Wood said that argument doesn’t hold water because My Campaign Group is not identified as either a co-conspirator or a victim in the indictment.
Judge William Carpenter Jr. on Tuesday refused to dismiss the indictment altogether but reserved the right to dismiss it if, after the state presented its evidence, prosecutors failed to prove New Castle County was the correct venue for the trial.
That presented a significant risk for prosecutors. Aside from proving the elements of their prosecution, they’d also have to establish New Castle County as the proper venue. If they failed, they’d risk the entire case being thrown out down the line at the judge’s discretion.
It’s not clear how long it will take for a new trial to be scheduled in Kent County, assuming a grand jury there returns the indictment. Both sides have indicated they want to move forward as quickly as possible.
McGuiness faces re-election in Nov. 2022.
While nobody has filed to challenge McGuiness in the Democratic primary, an opponent could emerge before the July 12, 2022 filing deadline.
If somebody steps forward to challenge McGuiness, she’ll be on the ballot for the Sept. 13 primary election and would likely prefer to have the case behind her by then.
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