WILMINGTON — In a response put on the case docket Monday, Deputy Attorney General Mark A. Denney Jr. requested that Superior Court deny a motion to sanction Attorney General Kathleen Jennings for comments made shortly after State Auditor Kathy McGuiness was indicted Oct. 11.
He also has sought an order limiting pretrial publicity for all parties.
In its response, the prosecution stated that none of Ms. Jennings’ comments improperly insinuated guilt and that none violated the Delaware Lawyers’ Rules of Professional Conduct.
The response was filed on Friday, reviewed and processed, then docketed to become part of the public record on Monday.
The auditor is charged with conflict of interest, in violation of the State Officials’ Code of Conduct; felony theft; noncompliance with procurement law by structuring state payments; official misconduct; and felony witness intimidation. She pleaded not guilty to all charges and remains in her elected position as auditor.
Speaking before media outside the Leonard L. Williams Justice Center in Wilmington on Oct. 11, Ms. Jennings said, “Look, I have not spoken to the defendant, and that has been deliberate. I can tell you that the Division of Civil Rights and Public Trust has reached out to the auditor on several occasions, and she has declined to speak with them.
”In a filing, Ms. McGuiness’ attorney Steve Wood opined that those remarks were “improper, and they are more likely than not to have a substantial likelihood of materially prejudicing an adjudicative proceeding in this case,” as defined by the Delaware Lawyers’ Rules of Professional Conduct.
Mr. Wood called for sanctions to include a ban on all public comments by the attorney general and Attorney General’s Office employees. Also requested was “a finding of fact (by Delaware Superior Court) that certain statements made by the AG specified herein constitute a violation of DLRPC rule.”
The AG office’s response pointed to “two lengthy public statements” issued by defense counsel, the defense only mentioning the grand jury process. Also, according to the DOJ, defense counsel impugned the motivation of witnesses, thus misleading the public.
The response questioned the validity of the motion, claiming that the AG provided an “accurate procedural answer to a press question” and a supposed “extrajudicial statement” was included, verbatim, in a court filing.
“Neither statement warrants action from this court,” the AG’s filing said.
The response maintained that Ms. McGuiness “is the first known statewide elected official to be indicted in Delaware, and her case is one of heightened public interest.”
Regarding the statement Ms. Jennings made about attempted contact with the state auditor, the response opined that she “did not remotely reference the defendant’s Fifth Amendment’s rights, nor did she imply in any way that the auditor’s refusal to speak suggests guilt.”
In such a high-profile case, the AG’s office said, a question from the public and/or press regarding the state auditor’s response to the situation would not seem unusual.
“Though that fact would not be a feature of any trial, it is an important safeguard against public concern that defendant, having been elected by the people, was afforded the opportunity to explain her criminal acts prior to being charged.
“Not all suspects in criminal investigations are given such an opportunity prior to their arrests.”
Also, the AG’s office reasoned, no members of the office or anyone associated with the Department of Justice made any public comments for three days after the press conference, “despite countless questions from the press and constituents.”
On Oct. 14, Ms. McGuiness filed a public, unsealed petition to the court asking that Mr. Wood represent her with public funding and far higher rates than a state public defender would. The filing drew considerable attention from the media, according to the AG’s office.
According to the filing “The Defendant and counsel then complained about the attention driven by the news coverage that they initiated. This final complaint arrived as an Amended Motion for Sanctions.
“She alleged that a statement made by a DOJ staffer — in response to press questions catalyzed by her motion for fees — has a ‘substantial likelihood of heightening public condemnation of the accused.”
According to the AG’s office, the statement was included, verbatim, in its response to the defendant’s petition and eligible for public comment.
The matter remains pending.