Delaware state auditor wants public to pay for their defense

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Delaware Auditor Kathy McGuiness has called on a local judge to charge taxpayers the bill for her legal defense as she battles criminal bribery charges.

Separately, a lawyer representing McGuiness is asking the court to sanction Attorney General Kathy Jennings for violating the rules governing the conduct of Delaware attorneys for comments Jennings made at a press conference announcing the charges against McGuiness.

McGuiness faces two felonies and multiple misdemeanors, accusing him of rigging public payments to a campaign consultant to avoid regulator oversight, hiring and supervising his daughter in the auditor’s office, and seeking to intimidate employees who could help investigators investigate his conduct. She pleaded not guilty to all counts.

A seven-page petition filed by his private attorney Steve Wood on Thursday cites a Delaware court rule that allows officials facing civil suits or criminal charges related to their public work to receive an attorney funded by the State.

EDITOR’S NOTE: Read the court documents at the end of this story.

Typically, this lawyer is appointed from the ranks of the Delaware Department of Justice. But because the Delaware Department of Justice is the entity that laid the five-count bribery indictment against McGuiness, she is asking the court to appoint her private attorney to represent her at a rate of $ 550. time.

Wood has represented McGuiness during the investigation and since she was charged on Monday. He served as a Delaware attorney for three decades, eventually headed the department’s criminal division, and is now a partner at the business law firm McCarter & English.

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In addition to its hourly rate, the claim also charges $ 425 per hour for associate lawyer work and $ 325 per hour for paralegal work.

To support the claim, Wood noted that his standard rate is $ 650, that the request is lower than standard billing rates for similar businesses in Wilmington, and that he recently completed a white collar criminal defense case before a federal court where he billed $ 630 an hour while lawyers representing his client’s co-defendants charged between $ 1,000 and $ 1,200 an hour.

Delaware State Auditor Kathy McGuiness, left, leaves the New Castle County Courthouse with her attorney Steve Wood on Tuesday, October 12, 2021. McGuiness was charged Monday with criminal charges she hired and supervised her daughter in a state job doing nothing, that she circumvented state contract laws to protect public payments to a political campaign group from the regulator's scrutiny and that she spied on and discriminated against employees who questioned his conduct.

Wood recently defended former Wilmington Trust chairman Robert Harra Jr. against federal corruption charges. It is not known whether this is the “white collar criminal defense issue” to which his petition in court refers.

McGuiness, a Democrat, former commissioner and pharmacist from Rehoboth Beach, is paid $ 112,000 a year as an auditor, has personally loaned over $ 75,000 to her own political campaigns for the past six years, and lives in a house which sold for $ 1 million a few blocks from the Atlantic Ocean in 2003, according to public records. His lawyer did not cite financial hardship in his petition.

Delaware Department of Justice prosecutors have yet to respond to the lawsuit.

In a statement written to a reporter on Friday, Justice Department spokesman Mat Marshall said: “It is sadly consistent with the accused conduct of the accused that it would require taxpayers to spend money. extra money when the law clearly requires a less expensive alternative. “

Wood and McGuiness are also asking the court to sanction Jennings by formally determining that Jennings violated the rules of conduct for professional lawyers and ordering the gag order on her and her staff.

The request stems from Jennings’ press conference Monday on the steps of the courthouse after McGuiness was charged earlier today. At the rally, Jennings and Senior Prosecutor Mark Denney spoke and answered reporters’ questions about the indictment.

At one point, Jennings was asked if McGuiness had released a response to the accusations. Jennings said the following:

“Listen, I did not speak to the accused and this was deliberate. I can tell you that the Civil Rights and Public Trust Division contacted the auditor on several occasions and refused. to talk to them. ”

EDITOR’S NOTE: See the video of Jennings’ full press conference at the top of this story

The Civil Rights and Public Trust Division is the division of Jennings’ Justice Department that investigated and is now suing McGuiness.

Democrats (left to right) pro tempore Senate Speaker David McBride, State Treasurer Colleen Davis, Attorney General Kathleen Jennings, Insurance Commissioner Trinidad Navarro, State Auditor Kathy McGuiness and President of State House Pete Schwartzkopf applaud Delaware Military Academy student Madison Williams (right) after singing the national anthem at the First State Democratic Dinner, Delaware Democrats' rally at Dover Downs.

Wood maintains that Jennings’ comment was “incorrect”.

Defendants have a constitutional right not to incriminate themselves by speaking to police or investigators. Further, prosecutors are prohibited from using this choice against the accused when attempting to convince a jury of the accused’s guilt.

Wood argues that Jennings’ comment about McGuiness’s refusal to speak prejudices potential jurors against his client and thereby infringes his right to a fair trial.

He argues that Jennings’ comments also go against the rules designed to prevent such biases. These rules can be found in the Delaware Lawyers Rules of Professional Conduct.

Specifically, the rules state that a lawyer participating in a case or investigation cannot make statements outside of court that the lawyer “knows or should reasonably know” will “be released by public communication” and will have a “substantial probability of seriously prejudicing judicial proceedings in a case.” ”

The guidelines associated with this rule also specifically state that statements regarding an accused’s refusal to make a statement to investigators are a subject “more likely than not” to have a “prejudicial effect”.

Another part of the rules prohibits prosecutors from “making extrajudicial comments which have a substantial probability of increasing the public conviction of the accused.”

In asking the court for penalties, Wood argued that Jennings’ comments violated both of these rules.

“This justifies the imposition of a stricter ban on out-of-court statements to prevent any future comment from the attorney general’s office that could further undermine the accused’s right to a fair trial,” Wood wrote in court.

Beyond his statements in court documents, Wood declined to comment on this story. Marshall, the DOJ spokesperson, declined to comment on the sanctions motion against Jennings.

After hearing the responses from the Justice Department, a judge is expected to rule on the motions in the days or weeks to come.

Contact Xerxes Wilson at (302) 324-2787 or xwilson @ delawareonline.com. Follow @Ber_Xerxes on Twitter.

REQUEST FOR APPOINTMENT OF LAWYER


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