Defense rests in McGuiness trial

The jury in the criminal case against State Auditor Kathy McGuiness is set to begin deliberation around lunchtime Thursday, June 30, after the defense rested its case June 29.

McGuiness, who is facing charges of felony theft, felony intimidation, official misconduct, conflict of interest and violation of state procurement law in a trial in Kent County Superior Court, elected not to testify in her own defense. When informed by Judge William C. Carpenter about her right to testify in her own defense and whether she wished to waive that right, McGuiness said she is confident that her legal team has shown reasonable doubt and was comfortable not testifying. 

After calling its first witness June 28, the defense called four additional witnesses June 29. 

First up was Kyra Marshall, a college student who interned in the auditor’s office with her friend, Saylar McGuiness, Kathy’s daughter, in the summer of 2021. The state has accused Kathy McGuiness of hiring her daughter and her friends while cutting the hours of other employees, and noted Saylar and Kathy had a shared bank account to which Saylar’s checks were deposited. In her testimony at trial, Saylar denied that she ever gave her mother money from the account.

Marshall testified that she was paid $17.50 per hour with work capped at 29.5 hours per week. Saylar and another friend, Virginia Bateman, testified to having a similar pay structure.

Marshall testified that her and Saylar’s duties in the auditor’s office in 2021 included social media posts, graphic design work and helping to provide information about Project Gray Fox, an auditor’s office initiative aimed at tracking how federal American Rescue Plan Act funds are spent in Delaware. She said she was not approached for questioning by the Attorney General’s Office for the case.

On cross-examination, Deputy Attorney General Mark Denney asked Marshall about people who worked within the auditor’s office in 2020, which is the main time period the state alleges McGuiness committed theft. Marshall said she did not know any of the people named; Denney said that was the reason the state did not question her.

Witness Lydia August provided testimony over Zoom because she lives in Florida. She said she first worked for McGuiness on her campaign for auditor and then in the auditor’s office. Like Marshall, she said she did not formally interview for her position, but had a weekly cap of 29.5 hours. Her duties were to accommodate McGuiness during public appearances and provide public information on auditor’s office initiatives. After testimony about her leaving the auditor’s office, August was asked if she was still close with McGuiness, to which August said yes, the two are still on friendly terms. A recording of a call between August and the Department of Justice’s lead investigator, Frank Robinson, was played. On the tape, August asks Robinson what the purpose of the call is. Robinson said he was looking into the experience of casual seasonal state employees during the height of the COVID-19 pandemic. 

McGuiness’ lead attorney, Steve Wood, then called Robinson to the stand as a hostile witness. Wood asked why Robinson misrepresented why he was calling August, and if he had called casual seasonal employees of other state departments. Robinson said he only talked to casual seasonals in the auditor’s office. Wood accused Robinson of making false statements; Robinson said he was not purposefully lying, but using an investigative technique to conceal the real purpose of the call.

On cross-examination, Denney asked if this was common in investigations. Robinson said it was, that it is common not to tell someone close to a person under investigation that an investigation is underway.

“I did not want to set off alarm bells,” Robinson said. 

The final witness was Tracey Mitchell-Ross, who worked in accounting in the auditor’s office. 

Mitchell-Ross testified that she came into an office that was chaotic and stressful. She said her predecessor had quit while on vacation and left her with no training in certain aspects of the job. She also said she left the auditor’s office, in part, because she was uncomfortable with the trial on the horizon. 

Mitchell-Ross was called to testify about alleged structuring of a state contract. The state says McGuinness structured a contract beneath the $50,000 threshold that would require a public bid process. 

Closing arguments in the case will be heard at 9:30 a.m., Thursday, June 30, in Dover. Following that, the jury will be given its instructions and sent to deliberate. Because the trial has seen two of the five alternate jurors become sick, including one who tested positive for COVID, Carpenter said he would wait until jury instructions are read before dismissing the alternates.