Start of Delaware auditor’s corruption trial delayed by argument over proper venue

Indicted Delaware auditor Kathy McGuiness (left) leaves Monday's abbreviated court session with defense lawyers Dean Elwell, Steve Wood and Chelsea Botsch.

File photo: Indicted Delaware auditor Kathy McGuiness (left) leaves court with defense lawyers Dean Elwell, Steve Wood, and Chelsea Botsch. (Cris Barrish/WHYY)

Opening arguments — and perhaps the start of the trial itself — were postponed Tuesday in the theft and corruption case against Delaware state auditor Kathy McGuiness.

The issue that threw a wrench into the proceeding is whether the case should be tried in New Castle County as opposed to Kent County, where McGuiness has her main office. McGuiness lives in the Sussex County town of Rehoboth Beach. She has an office in Wilmington, and often attends work-related events in Wilmington and other locations in New Castle County.

The state now has until Wednesday morning to decide whether they want to keep the case in New Castle County, which McGuiness opposed, or seek to re-indict her in Kent County. That would result in a delay of at least several weeks for the first trial of a statewide elected official in Delaware history.

Prosecutors accuse McGuiness of breaking state law by hiring her daughter and the girl’s best friend to do-nothing jobs, giving a campaign consultant a no-bid contract, and intimidating employees who complained about her actions.

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Jurors, witnesses, and lawyers were at the Wilmington courthouse for the scheduled 9:30 a.m. start Tuesday. So was McGuiness’s husband Steve, mother Angie, and sister Mary Beth.

But before proceeding, Superior Court Judge William C. Carpenter first entertained the question of whether the indictment itself was flawed. Defense attorney Steven P. Wood has long argued that the indictment by Attorney General Kathy Jennings’ office never specified that any of the alleged crimes occurred in Delaware’s northernmost county, and thus was invalid.

Lead prosecutor Mark Denney had filed a letter with the judge on Friday, arguing that it was appropriate for the case to be handled in New Castle County.

Denney argued that McGuiness “is a statewide elected official and public servant serving all three counties who has been charged for official misconduct and related charges.”

He wrote that it’s a “common-sense approach” to prosecute her in Delaware’s most populous county and that taxpayer “victims” live in all three counties.

Headshot of attorney Mark Denney.
Prosecutor Mark Denney must decide by Tuesday morning whether to proceed with the case in New Castle County. (State of Delaware)

In addition, the company My Campaign Group, which was awarded the disputed contract, has offices in New Castle County, he wrote, and sole proprietor Christie Gross “conducted business remotely from her home in New Castle County, as many people did as a result of the COVID pandemic,’’ Denney wrote.

“When an offense is started in one county but is completed in another county, the offense may be tried in any county in which it began, continued, or is completed,” Denney wrote.

He also noted that if one criminal act outlined in an indictment of multiple charges occurs in the county charged, that county is an appropriate venue.

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But Wood, a former senior prosecutor, countered in court Tuesday that the rules are clear “that prosecutions must occur in the county where the crime occurred.”

But, he asserted, “nothing happened here.”

He also stressed that the indictment doesn’t accuse Gross of wrongdoing or being the victim of a crime, so the fact that she conducts business in New Castle County is not “relevant to the analysis,’’ Wood said.

Judge Carpenter said the county or jurisdiction issue has “caused the court some concern, to be candid, because it changes what has been a conduct-based thing to a status-based thing.”

The judge noted that it would change longstanding precedent in Delaware and be “a pretty radical change for centuries-old’’ practices.

Carpenter said he “was not willing to dismiss the indictment” now, but would be watching closely to see if the state met the conduct-based test.

If the state moves forward and Carpenter later dismisses the charges after the case was presented to the jury, that would trigger double jeopardy. That’s a provision that prevents the government from prosecuting someone for the same crimes after being acquitted.

He ordered a brief recess, to give Denney and the prosecution team time to consider whether they wanted to proceed anyway.

He then met with the opposing lawyers in chambers. After emerging, Carpenter announced he would give prosecutors time to sleep on it. He ordered the parties back into court at 9:30 a.m. Wednesday.

Should Denney decide to pull the indictment for New Castle County, that would trigger the need for a re-indictment in Kent County, the setting of a new trial date, and selection of a new jury.

Wood said in court that he would then file a motion for “unnecessary delay” of the case and seek to have it dismissed for that.

Denney and Wood had no comment after the hearing.

McGuiness is charged with theft, official misconduct, witness intimidation, and other offenses. If convicted of the felony and misdemeanor charges, she faces zero to 13 years in prison.

Fellow Democrats and party officials have called on her to resign, but she has remained in office and is running for re-election to a second four-year term this fall.

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