Delaware prosecutors want a judge to make state Auditor Kathy McGuiness accept a public defender or pay for her own defense against criminal corruption charges, according to a Monday filing in New Castle County Superior Court.
The filing is a response to McGuiness’ Friday request that a judge allow her private attorney, McCarter & English partner Steve Wood, to represent her at rate of $550 an hour paid for by the public.
It sets up in a conflict in which Superior Court President Judge Jan Jurden will need to decide whether to allow Wood to continue to represent McGuiness at private-law-firm rates paid by the state or whether McGuiness must accept representation from the public defenders office if she does not want to pay a private attorney.
Having pleaded not guilty last week, McGuiness is in the early stages of defending herself against two felony and multiple public corruption misdemeanors charged by prosecutors in the Delaware Department of Justice. It is a locally unprecedented indictment of a sitting, statewide-elected official that accuses McGuiness of rigging state contracts to avoid scrutiny and hiring her daughter in a do-nothing job.
A Democrat, former Rehoboth Beach commissioner and pharmacist, McGuiness is paid $112,000 annually as state auditor and, as a private citizen, likely would not qualify for representation paid for by the public.
But Delaware law allows public officials sued or criminally indicted on charges related to their state work to be represented in court by a state-provided attorney.
Normally, that responsibility would fall to the Delaware Department of Justice, whose prosecutors indicted McGuiness. Both McGuiness’ attorney and prosecutors agree that because of that conflict, the Department of Justice couldn’t represent her.
The request by Wood cited a Delaware Supreme Court rule that states that the court may appoint “private counsel” if the Department of Justice can’t represent the defendant.
The rebuttal by prosecutors cites a portion of state law that goes into more detail regarding conflicts, stating the Office of Defense Services, the state entity that provides criminal defense to citizens who can’t afford an attorney, may be appointed if the Department of Justice has a conflict.
Specifically, the law states that the court “may first appoint an attorney from the Department of Justice,” and, if there is a conflict, “the court may appoint an attorney from the Office of Defense Services.”
Editor’s Notes: Read Wood’s filing to the court at the end of the story linked here. Read prosecutors’ response at the end of this story.
Prosecutors argue the law they cite supersedes the court rule argued by Wood and allows McGuiness a public defender or leaves her to pay her own, private attorney.
In Monday’s court filing, Alexander Mackler, Delaware’s chief deputy attorney general, added that paying a private law firm $550 an hour would “exacerbate systemic inequities” and be “absurd.”
He argued that the public defenders office handles about 35,000 cases a year and “in none of those cases is anyone compensated close to $550 an hour.”
Jon Offredo, spokesperson for the Delaware Office of Defense Services, said in a written statement Monday that the office is prepared to defend McGuiness if appointed.
Jurden is expected to rule on the motion in the coming days or weeks.
Separately, Wood has also asked the court to sanction Attorney General Kathy Jennings for statements she made about the case in a press conference last week.