WILMINGTON — As both sides await court rulings in the case against indicted State Auditor Kathy McGuiness, there’s no estimating the time frame ahead.
That’s according to Jules Epstein, director of advocacy programs for Temple University’s Beasley School of Law, who said forecasting the pace of proceedings is “too hard to predict.”
To Mr. Epstein, the pending question on how Ms. McGuiness’ defense will be paid for — through public monies or self-funded — must be resolved to start the process.
Currently, Ms. McGuiness is lobbying for a private defense attorney to be paid by state money due to the supposed Delaware Department of Justice’s conflict of interest.
Conversely, DOJ maintains that the auditor can use the state’s Office of Defense Services. Ms. McGuiness could also pay her attorney, Steve Wood, herself.
“Once the issue of counsel gets resolved, we will then know what types of pretrial motions there will be and how much time is needed for investigation and preparation,” Mr. Epstein said Thursday.
Ms. McGuiness 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 for alleged behavior while in office. She entered a not guilty plea on all charges Oct 12 and remains in her elected role.
Through spokesman Mat Marshall, DOJ declined comment Thursday. Mr. Wood declined comment, as well.
Besides the question of funding the defense, there’s the application from Mr. Wood that Delaware Attorney General Kathy Jennings be sanctioned for remarks made during a press conference in front of the Leonard L. Williams Justice Center in Wilmington shortly after the auditor was indicted.
So far, Mr. Epstein said, he’s been struck by the “aggressive lawyering ... on behalf of the accused, particularly the challenge to public comments about the case made by the prosecution, along with the push for state reimbursement of defense costs.”
Mr. Epstein alluded to accusations that Ms. McGuiness improperly hired her daughter and daughter’s friend as casual-seasonal employees in the Office of Auditor of Accounts.
“The allegation of hiring one’s own daughter is particularly bad in optics for the accused, unless there can be some showing of a good-faith reason for doing so,” he said.
The indictment of a high-ranking public official has naturally drawn widespread attention, and Mr. Epstein said the greatest challenge for the prosecution is “ensuring a fair trial with few/no appeal issues due to improper pretrial publicity, improper public statements, etc.”
For the defense, he said, “The more high profile the case, the more there is a risk of guilt being prejudged. Jury selection will have particular importance — pushing to learn what potential jurors have been exposed to and what beliefs may have been formed.
“There is one last concern for the defense: Politics can appear dirty, so that a government official on trial can be tainted just by the give-and-take and down-and-dirty of politics, so a successful defense has to show jurors that what may appear inappropriate is a far cry from what is criminal misconduct.”
Moving forward, Mr. Epstein said, “The most important task will be finding a way to present a case that will have a large amount of documentation in an easily digestible manner.
“For the defense, the first issue is to determine what charges have plausible defenses; if none does, then plea negotiations are in order.”
As far as the investigation’s length, Sam Hoff, a George Washington Distinguished Professor Emeritus of history and political science at Delaware State University, said, “It was amazing that they kept it under wraps for over a year.
“We don’t want to make excuses, but certainly, COVID could have had something to do with it, as far as scheduling, everything like that, which would be fairly mundane at other times.”
Delaware Coalition for Open Government Director John Flaherty, in fact, said he wants to hear more in public from the prosecution.
“I would like the AG’s Office to give weekly updates to the public on the progress of this case,” he said. “The public has the right to know in such a high-profile prosecution of an elected official.”
So far, he said, “I believe the AG has been transparent. It appears that a number of whistleblowers came forth to spur the eventual investigation and the subsequent indictment.
“My impression is that the testimony of the whistleblowers will be critical in any future trial.”
The Superior Court indictment against Ms. McGuiness does reference several whistleblowers who “expressed concerns about misconduct within OAOA.”
Describing Mr. Wood as being as “sharp and smart as any attorney in Delaware,” the upcoming proceedings will involve veteran prosecution and defense attorneys making their cases, Mr. Flaherty said.
“Between Jennings and Wood, they have years of prosecutorial experience between them,” he said. “This forthcoming legal fight should be very interesting with both sides having such lengthy legal experience.”