Opening Brief: State v. McGuiness

EFiled: Mar 29 2023 10:43AM EDT
Filing ID 69680718
Case Number 438,2022
THE SUPREME COURT OF THE STATE OF DELAWARE
KATHLEEN MCGUINESS, : REDACTED - PUBLIC VERSION

: FILED MARCH 29, 2023
Defendant-Below, Appellant, : No. 438, 2022
:
v. : On Appeal from the Superior
: Court of the State of
STATE OF DELAWARE, : Delaware
:
Appellee. : ID No. 2206000799
APPELLANT’S OPENING BRIEF
Dated: March 14, 2023 Steven P. Wood (#2309)

Chelsea A. Botsch (#6715)
MCCARTER & ENGLISH, LLP
Renaissance Centre
405 N. King Street, 8th Floor
Wilmington, Delaware 19801
(302) 984-6300
Attorneys for Defendant-Below,

Appellant Kathleen McGuiness
ME1 44392110v.1
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................................................................... v
GLOSSARY............................................................................................................... x
NATURE OF PROCEEDINGS ................................................................................. 1
SUMMARY OF ARGUMENT ................................................................................. 2
STATEMENT OF FACTS ........................................................................................ 3
ARGUMENT ............................................................................................................. 9
I. THE STATE VIOLATED BRADY BY FAILING TO DISCLOSE

EXCULPATORY MATERIAL IN ITS POSSESSION AND BY
SUPPRESSING IT SUCH THAT MCGUINESS COULD NOT MAKE
EFFECTIVE USE OF IT. ................................................................................ 9
A. Question Presented ................................................................................ 9
B. Standard of Review ............................................................................... 9
C. Merits of the Argument ......................................................................... 9
1. The Evidence Was Favorable to McGuiness. ............................. 15
2. The State Suppressed the Favorable Evidence ........................... 18
3. The Suppressed Favorable Evidence Was Material.................... 20
II. THE TRIAL COURT’S FAILURE TO ENFORCE BRADY DESPITE

FINDING THAT THE STATE HAD VIOLATED FRANKS STYMIED
MCGUINESS’S INVESTIGATION OF POSSIBLE AFFIRMATIVE
DEFENSES.................................................................................................... 23
A. Question Presented .............................................................................. 23
B. Standard of Review ............................................................................. 23
ME1 44392110v.1
C. Merits of the Argument ....................................................................... 23
III. THE TRIAL COURT FAILED TO RECOGNIZE THE LACK OF

EVIDENCE SUPPORTING COUNT ONE (CONFLICT OF
INTEREST). .................................................................................................. 28
IV. THE TRIAL COURT’S FAILURE TO DISMISS COUNT FIVE OR

EXCLUDE EVIDENCE IRRELEVANT TO ITS PROOF RESULTED
IN UNFAIR PREJUDICE TO MCGUINESS. .............................................34
1. The Trial Court's Failure to Dismiss Count Five or

Exclude Evidence. ....................................................................... 34
2. The Admitted Evidence Amounted to Inadmissible

Character Evidence. .................................................................... 37
3. The Trial Court Failed to Properly Analyze What

Amounted to Inadmissible Character Evidence. ......................... 39
V. THE FAILURE TO DISMISS OR ACQUIT ON COUNT THREE

PRIOR TO SUBMISSION TO THE JURY PREJUDICIALLY SPILLED
OVER INTO COUNT FOUR. ...................................................................... 42
ii
ME1 44392110v.1
VI. COUNTS ONE AND FOUR WERE
UNCONSTITUTIONALLY MULTIPLICITOUS. ..................................... 47
VII. THE TRIAL COURT VIOLATED THE DELAWARE

CONSTITUTION BY COMMENTING ON THE
CREDIBILITY OF A STATE WITNESS. ................................................... 49
VIII. THE TRIAL COURT MISINTERPRETED 10 DEL. C. § 3925 AND

ERRONEOUSLY DENIED MCGUINESS APPOINTMENT OF
PRIVATE COUNSEL. .................................................................................. 53
CONCLUSION ........................................................................................................ 59
Private Counsel for a State Officer, dated October 28, 2021 ...................... Exhibit A
Memorandum Opinion on Defendant’s Motion to Compel,

dated April 13, 2022 .......................................................................... Exhibit B
Letter Opinion from Court on Defendant’s Motion for a Bill

Of Particulars, dated April 21, 2022 .................................................. Exhibit C
iii
ME1 44392110v.1
Memorandum Opinion on Defendant’s Motion to Dismiss
Count Five, dated May 2, 2022 ......................................................... Exhibit D

Count Three, dated May 13, 2022 ..................................................... Exhibit E
Order on Defendant’s Motion for Reargument, dated

May 17, 2022 ......................................................................................Exhibit F

Indictment or Alternatively Sanction the State for
Discovery Violations, dated May 18, 2022 ....................................... Exhibit G
Order on Defendant’s Motion for Reargument, dated

May 19, 2022 ..................................................................................... Exhibit H
Letter Opinion on Motion in Limine, dated May 25, 2022 .......................... Exhibit I
Order on Transfer of All Filings and Rulings of Record for Appeal

Purposes in Kent Count, Case ID No. 2206000799
dated June 9, 2022 .............................................................................. Exhibit J
Memorandum Opinion on Defendant’s Motion for Judgment

Of Acquittal and Defendant’s Motion for a New
Trial, dated August 30, 2022 ............................................................. Exhibit K
Sentence Order, dated October 19, 2022 ..................................................... Exhibit L
iv
ME1 44392110v.1
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Banks v. Dretke,
540 U.S. 668 (2004) ........................................................................................ 13
Bracey v. Superintendent Rockview SCI,

986 F.3d 274 (3d Cir. 2021) ............................................................................. 4
Brady v. Maryland
373 U.S. 83 (1963) ................................................................................... passim
Brown v. Ohio,
432 U.S. 161 (1977) ....................................................................................... 48
Cone v. Bell,
556 U.S. 449 (2009) ........................................................................................ 22
Dennis v. Sec’y, Pa. Dep’t of Corr.,

834 F.3d 263 (3d Cir. 2016) ..................................................................... 14, 24
Franks v. Delaware,
438 U.S. 154 (1978) .............................................................................. 6, 23, 25
Kyles v. Whitley,
514 U.S. 419 ............................................................................................. 24, 26
Maynard v. Gov’t of V.I.,

392 F. App’x 105 (3d Cir. 2010) .................................................................... 11
In re Sealed Case No. 99-3096 (Brady Obligations),

185 F.3d 887 (D.C. Cir. 1999) ........................................................................ 11
United States v. Cessa,

861 F.3d 121 (5th Cir. 2017) .................................................................... 24, 26
United States v. Fattah,

914 F.3d 112 (3d Cir. 2019) ........................................................................... 42
ME1 44392110v.1
United States v. Kirk Tang Yuk,
885 F.3d 57 (2d Cir. 2018) ............................................................................. 18
United States v. Lane,

791 F.2d 935 (6th Cir. 1986) .......................................................................... 43
United States v. Murphy,

323 F.3d 102 (3d Cir. 2003) ........................................................................... 46
United States v. Pelullo,

14 F.3d 881 (3d Cir. 1994) ............................................................................. 43
United States v. Perdomo,

929 F.2d 967 (3d Cir. 1991) ........................................................................... 13
United States v. Wright,

665 F.3d 560 (3d Cir. 2012) ............................................................... 42, 43, 45
Wearry v. Cain,
577 U.S. 385 (2016) .................................................................................. 20, 21
State Cases
Atkinson v. State,
778 A.2d 1058 (Del. 2001) ............................................................................. 20
Baumann v. State,
891 A.2d 146 (Del. 2005) ............................................................................... 37
Brown v. State,
105 A.2d 646 (Del. 1954) ............................................................................... 49
Derrickson v. State,
321 A.2d 497 (Del. 1974) ............................................................................... 33
DeShields v. State,
706 A.2d 502 (Del. 1998) ............................................................................... 39
Dickens v. State,
437 A.2d 159 (Del. 1981) ............................................................................... 18
vi
ME1 44392110v.1
Flonnory v. State,
893 A.2d 507 (Del. 2006) ............................................................................... 28
Freeman v. X-Ray Associates, P.A.,

3 A.3d 224 (Del. 2010) ................................................................................... 53
Getz v. State,
538 A.2d 726 (Del. 1988) ............................................................................... 39
Hazout v. Tsang Mun Ting,

134 A.3d 274 (Del. 2016) ............................................................................... 58
Herring v. State,
805 A.2d 872 (Del. 2002) ......................................................................... 49, 51
Hoennicke v. State,
13 A.3d 744 (Del. 2010) ................................................................................ 47
Houston v. State,
251 A.3d 102 (Del. 2021) ............................................................................... 34
Manti Holdings, LLC v. Authentix Acquisition Co.,

261 A.3d 1199 (Del. 2021) ............................................................................. 56
Mason v. State,
963 A.2d 139 (Del. 2009) .............................................................................. 56
Norwood v. State,
991 A.2d 18 (Del. 2010) ................................................................................. 49
People v. Bueno,
409 P.3d 320 (Colo. 2018) .............................................................................. 19
PHL Variable Ins. Co. v. Price Dawe 2006 Ins. Tr., ex rel. Christiana
Bank & Tr. Co.,
28 A.3d 1059 (Del. 2011) ............................................................................... 58
Ray v. State,
280 A.3d 627 (Del. 2022) ............................................................................... 11
Risper v. State,
250 A.3d 76 (Del. 2021) .......................................................................... passim
vii
ME1 44392110v.1
Salzberg v. Sciabacucchi,
227 A.3d 102 (Del. 2020) ............................................................................... 55
Skinner v. State,
575 A.2d 1108 (Del. 1990) ............................................................................. 12
State v. Wright,
67 A.3d 319 (Del. 2013) ................................................................................. 14
Thompson v. State,
205 A.3d 827 (Del. 2019) ............................................................................... 38
Waters v. State,
242 A.3d 778 (Del. 2020) ............................................................................... 40
White v. State,
243 A.3d 381 (Del. 2020) ........................................................................ 47, 48
Wild Meadows MHC, LLC v. Weidman,

250 A.3d 751 (Del. 2021) ............................................................................... 55
Wright v. State,
405 A.2d 685 (Del. 1979) ............................................................................... 49
Wright v. State,
91 A.3d 972 (Del. 2014) .......................................................................... passim
State Statutes
10 Del. C. § 3925 .......................................................................................... passim
11 Del. C. § 206 ............................................................................................. 47, 48
11 Del. C. § 3531 ................................................................................................. 36
11 Del. C. § 3532 ................................................................................................. 34
29 Del. C. § 5805 ........................................................................................... 23, 28
29 Del. C. § 6903 ............................................................................................... 233
viii
ME1 44392110v.1
Rules
Del. Supr. Ct. R. 68 ....................................................................................... passim
Del. Super. Ct. Crim. R. 16 ........................................................................... passim
Del. Super Ct. Crim. R. 29 ............................................................................ passim
Del. Super Ct. Crim. R. 33 ..................................................................................... 8
D.R.E. 404(b). ...................................................................................................... 40
Constitutional Provisions
United States Constitution, Amendment XIV ..................................................... 13
Delaware Constitution, Article IV, Section 19 ........................................ 49, 50, 51
Other Authorities
Antonin Scalia & Bryan A. Garner, Reading the Law: The
Interpretation of Legal Texts 112 (2012) ....................................................... 56
Black’s Law Dictionary (11th ed. 2019) ............................................................. 51
60 Del. Laws, c. 474, § 1 ..................................................................................... 57
Edward J. Imwinkelried, Uncharged Misconduct Evidence § 1.3

(2022 ed.) ........................................................................................................ 37
Sixth Amendment Center, Delaware’s Right to Counsel Deficiencies

Exposed (Feb. 8, 2014) https://sixthamendment.org/delawares-
right-to-counsel-deficiencies-exposed/ ........................................................... 57
ix
ME1 44392110v.1
GLOSSARY
OAOA Office of Auditor of Accounts
Appellant or Kathleen McGuiness

McGuiness
Daughter Kathleen McGuiness’s daughter
The State Office of the Attorney General or Department of Justice
Motion to Dismiss Defendant’s Motion to Dismiss Count Five of the

Count Five Indictment
Motion to Dismiss Defendant’s Motion to Dismiss Count Three of the
Count Three Indictment for Unnecessary Delay and Failure to
Adequately Describe an Offense
Motion to Dismiss Defendant’s Motion to Dismiss Indictment or Alternatively
or Sanction Sanction the State for Discovery Violations
ODS Office of Defense Services
Petition Petition for Appointment of Private Counsel for a State
Officer
The court below President Judge Jan R. Jurden
ME1 44392110v.1
NATURE OF PROCEEDINGS
This case presents the question of whether Kathleen McGuiness
(“McGuiness”), the first incumbent statewide-elected official to be charged and
convicted of a crime based upon the hiring of a close relative while in office,
received a fair trial. The answer is a resounding “no.”
The Delaware Department of Justice (the “State”) in this case disregarded its
obligations under Brady v. Maryland, 373 U.S. 83 (1963) and committed what is
surely the largest Brady violation in the history of Delaware by waiting six weeks
before trial to disclose 511,266 digital files that were in its possession for more
than six months, none of which it bothered to search for exculpatory material. Its
Chief Investigator, Frank Robinson, swore to a demonstrably false probable cause
affidavit, the authors of which may have included senior prosecutors and
administrators at the Department of Justice, resulting in a rare loss pursuant to
Franks v. Delaware, 438 U.S. 154 (1978). At seemingly every turn, the trial court
overlooked well-settled constitutional, statutory, and rule-based precedent. Its
errors permitted the State to strike not just “hard blows,” but “foul ones.” Berger
v. United States, 295 U.S. 78, 88 (1935).
McGuiness appeals from the culmination of the trial court’s errors and the
State’s constitutional violations—her convictions and her October 19, 2022
sentence.
1
ME1 44392110v.1
SUMMARY OF ARGUMENT
The trial court erred by holding that:
1. The State did not violate Brady v. Maryland by suppressing 511,266
material exculpatory files that had been in its possession for more than six months
prior to producing them to McGuiness six weeks before trial.
2. McGuiness was not entitled under Brady v. Maryland to material
exculpatory evidence about who among the highest levels of the Delaware
Department of Justice had written demonstrably false statements in a probable
cause affidavit in violation of Franks v. Delaware.
3. There was sufficient evidence to support the jury’s finding of guilt on
Count One.
4. The failure to dismiss Count Five in a timely fashion did not result in
the admission of highly prejudicial character evidence.
5. The Indictments charged an offense under Count Three, resulting in
prejudicial spillover.
6. Counts One and Four were not multiplicitous.
7. Its comments on the credibility of the State’s Chief Investigator were
not violative of the Delaware Constitution.
8. McGuiness was not entitled under 10 Del. C. § 3925 to the
appointment of private counsel.

2
ME1 44392110v.1
STATEMENT OF FACTS
On September 29, 2021, the State executed a search warrant at the Office of
Auditor of Accounts (“OAOA”), which was authorized by the Superior Court in
reliance upon an affidavit of probable cause attested to by Robinson. A324-A334.
The affidavit was riddled with half-truths and misleading statements. Robinson
would eventually admit under oath that certain assertions in Paragraphs 23 and 24
of the affidavit were false. A2479:36; A2514-A2517. Three laptops and six other
digital storage devices were seized during the search. A380. Only one of the
devices (a laptop) belonged to McGuiness. Id.; Exhibit G at 2. A total of 511,266
digital files were contained on the seized devices. Exhibit G at 4.
On October 11, 2021, the State indicted McGuiness for five Counts: (1)
Conflict of Interest, (2) Felony Theft, (3) Non-Compliance with Procurement Law,
(4) Official Misconduct, and (5) Act of Intimidation. A31-A41 (“Original
Indictment”). Paragraphs 31 and 32 of the Original Indictment contained the same
factually false allegations that were alleged in Paragraphs 23 and 24 of the
affidavit. A37.
McGuiness chose to be represented by undersigned counsel. A2. Because
McGuiness was a public servant of the State and the charges related to her service
in office, counsel filed a timely motion requesting appointment of private counsel
with payment by public funds. A42-A49. The trial court denied the motion after
3
ME1 44392110v.1
concluding that, under 10 Del. C. § 3925, it had no discretion to permit McGuiness
to hire private counsel at public expense. Exhibit A.
On November 30, 2021, McGuiness filed a discovery request pursuant to
Superior Court Criminal Rule 16 which requested production, inter alia, of all
seized materials and any evidence in the State possession material to her defense,
as well as production of all materials disclosable pursuant to Brady. A183-A186.
The parties and trial court agreed to a schedule which established a discovery
deadline would be December 17, 2021, and a deadline of January 31, 2022 for all
discovery and suppression motions. A5.
On December 17, 2021, the State provided McGuiness with what it deemed
relevant discovery. A5. After review of the provided discovery, McGuiness filed
a Motion to Compel Discovery on January 31, 2022, asking that the State provide
the requested materials that it refused to produce. A156-A194.
Shortly thereafter, on February 25, 2022, McGuiness filed a Motion to
Dismiss Count Five of the Original Indictment, arguing it was deficient because it
failed to charge an offense. A228-A251.
On March 28, 2022, the State obtained another indictment (the “Superseding
Indictment”). A347-A363. The Superseding Indictment made significant changes
to Counts Three and Five. A347-A363.
ME1 44392110v.1
On March 31, 2022, approximately six weeks before trial was then
scheduled to begin, the State produced 51 un-transcribed witness interview audio
files. A382, A390. That same day, the State advised that it would “soon” produce
electronically stored information (“ESI”) seized by the State during the September
29 search warrant execution. A424-A425. The State further advised that “no
member of the Prosecution Team has been provided access to the data DSP
delivered to Parcels.” A422.
On April 5, 2022, McGuiness filed a Motion to Dismiss Count Three of the
Indictment for Unnecessary Delay and Failure to Adequately Describe an Offense.
A301-A371. Meanwhile, the trial court granted in part and denied in part the
Motion to Compel and denied the Motion to Dismiss Count Five. A156-A194;
A228-A251. As to the latter motion, the trial court held that proof of Count Five
required the State to prove, inter alia, that McGuiness was aware that her conduct
was direct towards a person whom she believed was a witness in an inquiry or
proceeding. Exhibit D at 5-6. It also urged the State to focus its proof on acts
occurring after September 11, 2021 (when the State told McGuiness that she was a
target of a criminal investigation). Exhibits B, C, and D.
On April 8, 2022, the State produced the seized ESI, which consisted of
511,266 documents and other files. A383. The seized ESI had been in the State’s
possession since September 29, 2021. Id. In response, on April 21, 2022,
5
ME1 44392110v.1
McGuiness filed a Motion to Dismiss the Indictment or Alternatively Sanction the
State for Discovery Violations. A378-A423.
The trial court denied the Motion to Dismiss Count Three, Exhibit E, and
granted and denied in part the Motion to Dismiss or Sanction, Exhibit G. In
denying the Motion to Dismiss or Sanction, the trial court determined that the State
never searched the seized ESI for exculpatory material. Exhibit G at 5. It further
wrote that it could not “condone the failure of the State to provide these materials
timely,” and there was “no justifiable reason for waiting six months to deliver a
large file of unreviewed documents to [McGuiness].” Id. at 8. The trial court
further found that at the time the seized ESI was produced, “trial was less than two
months away and even experienced counsel would have difficulty searching,
reviewing, and reasonably considering their implications.” Id. The trial court
imposed no meaningful sanction for the State’s Brady violation. Id. at 8-9.
One motion remained: McGuiness’s Motion to Suppress and Request for a
Franks Hearing based on false allegations in the search warrant affidavit and
subsequent indictments. A699-A758. During the Franks hearing, Robinson agreed
that he included facts in the affidavit of probable cause supporting the search
warrant that he knew or should have known were false. A2514-A2518. Robinson
never intimated that anyone else was responsible for drafting the affidavit. Id. In
light of Robinson’s testimony, the trial court suppressed the seized ESI. A2529.
6
ME1 44392110v.1
McGuiness then filed a motion in limine requesting the State be precluded
from introducing evidence of events occurring prior to September 11, 2021 under
the guise of Count Five, as that was the earliest date upon which she could have
been aware of the existence of an inquiry or proceeding against her. A530-A534.
The trial court denied the motion. A2557-A2558.
On June 1, 2022, the State entered a nolle prosequi without prejudice in ID
No. 2110001942 after realizing it had likely improperly alleged venue in New
Castle County. A768. On June 6, 2022, McGuiness was re-indicted in Kent
County, ID No. 2206000799. A769-A783. The trial court ordered that all
pleadings and rulings made in ID No. 2110001942 were to be transferred to ID No.
2206000799 as the law of the case. A1066-A1067.
Finally, trial began. During the State’s presentation of 26 witnesses,
McGuiness made multiple objections and motions to exclude testimony as
irrelevant and unfairly prejudicial because it related to incidents that occurred
before McGuiness knew she was under investigation or could have known who the
witnesses against her might be. A2685-A3734. Most of the objections were
overruled, and the trial court repeatedly refused to order the State to make an offer
of proof, the trial court allowed the witnesses to testify. A2843-A2856; A2939-
A2941; A2954-A2964; A3335-A3351.
ME1 44392110v.1
At the close of the State’s case, and again after the evidence was closed,
McGuiness moved for judgment of acquittal on all Counts pursuant to Rule 29(a).
A4695-A4733; A4968-A4969. The trial court reserved its decision on each motion.
A4732-A4733; A4969.
On July 1, 2022, the jury found McGuiness not guilty of Counts Two and
Five and guilty of Counts One, Three, and Four. A5115-A5116.
On July 20, 2022, McGuiness filed post-trial motions pursuant to Rules
29(c) and 33. A2107; A2127. The trial court granted McGuiness’s Rule 29(c)
motion on Count Three while denying the remainder of her motions. Exhibit K.
On October 19, 2022, McGuiness was sentenced to, inter alia, pay a $10,000
fine, serve one year in custody at supervision Level 5, suspended for one year at
supervision Level 1, and perform 500 hours of community service. Exhibit L.
McGuiness filed a Notice of Appeal on November 18, 2022. This Opening
Brief now follows.
ME1 44392110v.1
ARGUMENT
I. THE STATE VIOLATED BRADY BY FAILING TO DISCLOSE

EXCULPATORY MATERIAL IN ITS POSSESSION AND BY
SUPPRESSING IT SUCH THAT MCGUINESS COULD NOT MAKE
EFFECTIVE USE OF IT.
A. Question Presented
Whether, under Brady v. Maryland, the State violated its duty to search by
failing to review the 511,266 files that had been in its possession for over six
months before producing them to McGuiness six weeks before trial, thereby
suppressing material exculpatory evidence. A379-A423; A1477-A1500.
B. Standard of Review
Claims that the State failed to meet its obligations under Brady are reviewed
de novo. Wright v. State, 91 A.3d 972, 982 (Del. 2014) (en banc) (remanding for
new trial).
C. Merits of the Argument
On September 29, 2021, the State seized digital storage devices from
OAOA. On November 30, 2021, McGuiness made a Brady request for “[a]ll
information and materials in the possession of the State which fall within the ambit
of Brady,” including “[a]ny information that is known to or reasonably accessible
to the State that is exculpatory or impeaching,” as well as a discovery request
pursuant to Rule 16(a)(1)(C) for “[a]ny books, papers, documents, photographs,
ME1 44392110v.1
[or] tangible objects… which are material to the preparation of the defendant’s
defense or are intended for use by the state as evidence in chief at the trial, or
which were obtained from or belong to the defendant.” A183-A186.
Both Rule 16(d)(3)(B) and the trial court’s scheduling order established a
discovery deadline of December 17, 2021. However, not until April 8, 2022—six
months later and six weeks before the scheduled trial date—did the State produce
approximately 511,266 files from the seized digital storage devices. Thousands of
these files related to the focal point of Counts One and Four: McGuiness’s
daughter (“Daughter”), and in particular the conditions of her employment and the
identities and terms of employment of OAOA’s other casual-seasonal employees.
According to the State, the seized ESI was not examined for the presence of
exculpatory material prior to its production. A422-A423.
The trial court found that the State never reviewed the seized ESI for the
purpose of finding Brady material. Exhibit G at 5. The trial court also determined
that the State had “no justifiable reason for waiting six months to deliver a large
file of unreviewed documents to [McGuiness]” and that “even experienced counsel
would have difficulty searching, reviewing, and reasonably considering their
implications,” yet it imposed no meaningful sanction at all for what is undoubtedly
the largest Brady violation in Delaware’s history, measured by the number of
suppressed files. Id. at 8. Because this suppression undermines confidence in

10
ME1 44392110v.1
McGuiness’s conviction—and to also make it clear that the State cannot ignore its
obligations under Brady by shifting them to the accused—a new trial is required.
It is axiomatic that the State has a constitutional obligation to disclose
exculpatory evidence within its possession to the defense when that evidence might
be material to the outcome of the case. Risper v. State, 250 A.3d 76, 90 (Del.
2021) (citing Brady v. Maryland, 373 U.S. 83 (1963)). Brady is “based on the
requirement of due process” and, as such, is grounded in principles of fairness—
“not punishment of society for misdeeds of a prosecutor but an avoidance of an
unfair trial of the accused.” Id.
To comply with Brady, the State “must disclose all relevant information
obtained by the police or others in the Attorney General’s Office to the defense.”
Wright, 91 A.3d at 988. “That entails a duty on the part of the individual
prosecutor ‘to learn of any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.’” Id. (quoting Kyles v.
Whitley, 514 U.S. 419, 437 (1995)); see also Ray v. State, 280 A.3d 627, 646 (Del.
2022) (same); Maynard v. Gov’t of V.I., 392 F. App’x 105, 113 (3d Cir. 2010)
(“Under Brady, the government must take the minimal steps necessary to
acquire information of which the prosecution should be aware, even if it lacks
knowledge of the material at the time the defendant requests disclosure.”); In re
Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 898 (D.C. Cir. 1999)
11
ME1 44392110v.1
(“The government concedes that it never conducted a full-fledged Brady search....
that failure constituted a breach of the government’s ‘duty to search’ for Brady
information.”).
Here, the trial court found that the State did nothing to analyze the seized
files for the presence of material exculpatory evidence during the entire six-month
period that the evidence was in its sole possession. Exhibit G at 5. Nor did the
State simply produce the files—Brady material or not—to McGuiness “within 20
days after service of [her] request” on November 30, 2021, pursuant to Rule 16 or
the trial court’s scheduling order. Id. at 8-10. The State simply did nothing. This
alone warrants setting aside the convictions. See Skinner v. State, 575 A.2d 1108,
1126 (Del. 1990).
The trial court tried to explain away the State’s deficiencies by erroneously
holding that “the State has no obligation to look through hundreds of thousands of
documents, one by one, and decide if a Brady disclosure obligation is warranted as
to that document.” Exhibit K at 22. The trial court cited no authority in support of
this new rule. And, it overlooked its own finding that the State not only failed to
review every file, it failed to review any of the files. Instead, the trial court flatly
pronounced a more lenient Brady standard for white-collar cases:
12
ME1 44392110v.1
For a routine robbery or drug case, it generally is not unreasonable to
require the State to thoroughly review documents and statements to
comply with its Brady obligation. However, in a complex white-
collar criminal matter that often involves hundreds of thousands of
documents, such a standard is simply unrealistic, unmanageable and
will lead to endless claims of Brady violations as has occurred here.
Exhibit K at 23. The trial court failed to cite any authority in support of this new
rule, which is fundamentally irreconcilable with Brady’s mandate. See Banks v.
Dretke, 540 U.S. 668, 696 (2004) (“A rule thus declaring ‘prosecutor may hide,
defendant must seek,’ is not tenable in a system constitutionally bound to accord
defendants due process.”).
As the foundation for the Brady doctrine, see Wright, 91 A.3d at 977, the
Fourteenth Amendment permits no such distinction based on either the types of
charges brought or the difficulty the State might have in finding exculpatory
information among evidence in its possession, see Const. amend. XIV. A white-
collar defendant does not have less of a claim to Brady than any other defendant,
and the State cannot claim difficulty or expense as a reason for shirking its Brady
obligations. Brady is intended to protect a defendant from the State, and not the
State from hard work. United States v. Perdomo, 929 F.2d 967, 971 (3d Cir. 1991)
(holding that the availability of information to the prosecution for Brady purposes
“is not measured in terms of whether the information is easy or difficult to obtain
but by whether the information is in the possession of some arm of the state”),
13
ME1 44392110v.1
abrogated on other grounds by Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263
(3d Cir. 2016) (en banc).
The trial court also erred when it held that “the government is not obliged
under Brady to furnish a defendant with information which [s]he already has or,
with reasonable diligence, she can obtain for [her]self.” Exhibit G at 11. The only
authority cited by the trial court for this proposition was a Third Circuit case that
was overruled in 2016 by the Third Circuit itself. See Dennis, 834 F.3d at 293
(“To the extent that we have considered defense counsel’s purported obligation to
exercise due diligence to excuse the government’s non-disclosure of material
exculpatory evidence, we reject that concept as an unwarranted dilution of Brady’s
clear mandate.”); see also Bracey v. Superintendent Rockview SCI, 986 F.3d 274,
289–90 (3d Cir. 2021) (recognizing that Dennis “decisively rejected” the line of
cases embracing a “due diligence” exception to the prosecutor’s Brady obligations,
stating that “[A]ny inquiry into the defendant's ability to discover that evidence [is]
beside the point”); accord State v. Wright, 67 A.3d 319, 327 (Del. 2013) (Ridgely,
J., dissenting) (“This due diligence rule has been criticized as inconsistent with
Brady.”), as amended (May 28, 2013).
Given all of this, the State’s failure to search the seized ESI in its possession
for Brady material and produce it in a timely fashion cannot be countenanced. It is
14
ME1 44392110v.1
reversible error, and a contrary holding will not deter the State from future
slothfulness in its Brady obligations.
This Court has held that a Brady violation constitutes reversible error when
“(1) evidence exists that is favorable to the accused, because it is either
exculpatory or impeaching; (2) that evidence is suppressed by the State; and (3) its
suppression prejudices the defendant.” Risper, 250 A.3d at 90 (quoting Starling v.
State, 882 A.2d 747, 756 (Del. 2005)). Here, all three criteria are easily met.
1. The Evidence Was Favorable to McGuiness.
There can be no doubt that the seized files were favorable to McGuiness.
The critical fact that the State needed to prove to convict McGuiness of both
Counts One and Four was that Daughter received a financial benefit “to a greater
extent than such benefit would accrue to others who are members of the same class
or group of persons.” A1072-A1074, A1081-A1083. The belatedly disclosed files
contained thousands of files bearing on this very question. A1491.
Among the 511,266 files that it produced six weeks before the scheduled
trial date were 11 “List of Authorized Positions” (“LAP”) reports for the relevant
period. A1486-A1487. These reports included, inter alia, a list of all OAOA
employees at a given time, along with their names, whether or not they were
casual-seasonal workers, and their rate of pay. See id. In other words, these LAP
reports defined the universe of OAOA employees to whom Daughter would be

15
ME1 44392110v.1
compared to determine whether she received a financial benefit not afforded to
other similarly situated employees. See id.; A1072-A1074; A1081-A1083. The
State knew that LAP reports were important, as it introduced one into evidence as
State Exhibit 2. A5159-A5163. The State could have easily found that these
multiple exculpatory LAP reports existed within the seized ESI as those reports
contained substantially the same searchable text with just a few minor differences
for dates and names.1
Had the State bothered to look, it would have learned that between March
2020 and September 2021 (the relevant period as alleged in the Indictments),
OAOA employed at least five casual-seasonal employees who were paid more per
hour than Daughter, and one whose hours were capped at 37.5 hours per week, the
same as Daughter. A1486-A1487. These facts are patently exculpatory, as they
belie the State’s attempt to prove that Daughter received a higher salary and could
work more hours than other casual-seasonal employees. A4978-A4979.
Even more importantly, these suppressed LAP reports contained the names
of other casual-seasonal OAOA employees whom the State never bothered to
interview or call as trial witnesses. Similarly, the State knew or should have known
that several of those other casual-seasonal employees received the same wages and
1
In her Motion to Dismiss or Sanction, McGuiness requested that the trial court at
least order the State to certify that it had searched the 511,266 files for Brady
material, but the trial court declined, and the State never so certified. A378-A423.
16
ME1 44392110v.1
treatment as Daughter. See, e.g, A4811-A4833:23, A4834-A4835:7 (Kyra
Marshall); A1489-A1490 (Colin Donnelly, Connor Perry, and Margo Gordon).
Three of these suppressed casual-seasonal employees attended college out-of-
state and were paid to work remotely for OAOA while doing so, directly
contradicting the State’s argument that only Daughter did so. A5072:14-17;
A1490-A1491.
The centrality of this fact to the verdict and the profoundly exculpatory
nature of the suppressed evidence cannot be exaggerated. The only fact cited by
the trial court in denying McGuiness’s Rule 29(c) motion on Count One was that
Daughter “was allowed to continue to work after she left Delaware to attend
college in Charleston, South Carolina and received payments during those
months.” Exhibit K at 9. “This extra salary earned while away at school” was the
only “financial benefit” credited by the trial court in denying McGuiness’s motion.
Id. The exculpatory nature of this evidence is clear. The State’s argument at trial
and the trial court’s finding that “only [Daughter]” was allowed to work remotely
while at college is false, as the suppressed LAP reports identify three other OAOA
casual-seasonal employees who worked remotely while attending college. A1490-
A1491.
17
ME1 44392110v.1
2. The State Suppressed the Favorable Evidence.
By failing to produce this Brady material timely, the State suppressed it such
that McGuiness could not make effective use of it. To establish “suppression” in
this context, a defendant must show: “(1) that the State was constitutionally
required to disclose the evidence to him; (2) that the State did not disclose the
evidence to him until just prior to or during trial; and (3) that such late disclosure
prevented him from effectively presenting the evidence at trial or from conducting
a necessary investigation.” Dickens v. State, 437 A.2d 159, 161 (Del. 1981). All
three of these criteria are easily met.
First, for the reasons set forth supra Section I.C.1., the State was
constitutionally required to disclose the seized files, as they were relevant to an
essential element that the State needed to prove to convict McGuiness of both
Counts One and Four.
Second, the State suppressed the seized ESI by waiting until to disclose it
until six weeks before trial was scheduled to begin. The trial court even sanctioned
the State under Rule 16 (only) for that reason, explaining that it “cannot condone
the failure of the State to provide these materials timely and finds that the State has
no justifiable reason for waiting six months to deliver a large file of unreviewed
documents to the Defendant.” Exhibit G at 8 (emphasis added); see also United
States v. Kirk Tang Yuk, 885 F.3d 57, 86 (2d Cir. 2018) (“Some courts have
18
ME1 44392110v.1
reasonably suggested that burying exculpatory material within a production of a
voluminous, undifferentiated open case file might violate the government's
obligations.”); People v. Bueno, 409 P.3d 320, 328 (Colo. 2018) (holding the State
does not satisfy its Brady obligations by affording a defendant the opportunity to
search for “a needle in a haystack”).
Third, the State’s late disclosure prevented McGuiness from investigating
and effectively presenting this exculpatory evidence. “The opportunity for use
under Brady includes the opportunity for a responsible lawyer to use the
information with some degree of calculation and forethought.” Risper, 250 A.3d at
91. Here, the trial court found that “[a]t the time these documents were produced,
trial was less than two months away and even experienced counsel would have
difficulty searching, reviewing, and reasonably considering their implications.”
Exhibit G at 8 (emphasis added).
The trial court actually understated the problem. When the State finally
produced the seized ESI, it was only a week after it disclosed the un-transcribed
audio recordings of 51 witness statements, and after the State had already provided
some 18,000 documents is discovery. A382, A390. McGuiness had also been
newly confronted with the Superseding Indictment that redrafted Counts Three and
Five, A270-A282, and a long list of witnesses who would attack her character
under the guise of Count Five, A434-A436.

19
ME1 44392110v.1
Here, the State’s suppression had a debilitating effect “on the preparation
[and] presentation of [McGuiness’s] case” with respect to all Counts, but
particularly Counts One and Four. See Wright, 91 A.3d at 987–88, 992 & n.70
(remanding where limited disclosure prevented defense counsel from adequately
using Brady material and conducting any meaningful investigation). Its delayed
disclosure made effective use of the suppressed ESI impossible. Anything less
than a reversal will tacitly encourage the State to behave similarly in the future.
See Atkinson v. State, 778 A.2d 1058, 1062 (Del. 2001) (“If the defendant was
unable to use the evidence effectively because of delayed disclosure, a new trial is
warranted.”).
3. The Suppressed Favorable Evidence Was Material.
Finally, the suppressed favorable evidence was clearly material. “Evidence
qualifies as material when there is any reasonable likelihood it could have affected
the judgment of the jury.” Wearry v. Cain, 577 U.S. 385, 392 (2016). The
question of materiality “is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether in its absence [s]he
received a fair trial resulting in a verdict worthy of confidence.” Risper, 250 A.3d
at 92. The State’s suppression of exculpatory LAP reports and the existence of
similarly situated (and similarly treated) casual-seasonal employees undermines
confidence in the convictions on Counts One and Four. This evidence goes to the
20
ME1 44392110v.1
very heart of those Counts—whether Daughter received a financial benefit “to a
greater extent than such benefit would accrue to others who are members of the
same class or group of persons.” A1072-A1074; A1081-A1083. Had the
suppressed favorable evidence concerning the identity of three casual-seasonal
employees who attended college out-of-state and were paid to work remotely for
OAOA while doing so been found and produced consistent with Brady and Rule
16, there is a “reasonable likelihood it could have affected the judgment of the
jury.” See Wearry, 577 U.S. at 392.
The State’s Brady violations are such that that this was not a “fair trial
resulting in a verdict worthy of confidence.” See Risper, 250 A.3d at 9. Indeed, in
denying McGuiness’s Motion to Dismiss or Sanction, the trial court recognized
that the State had suppressed “potential critical documents,” yet it declined to find
a Brady violation, ruling that “[w]hile the State[‘s] justification reflects their
failure to use a commonsense management… there is nothing to suggest they did
so in bad faith or to obtain a litigation advantage. As such, dismissal of the
Indictment as requested by the Defendant is not justified.” Exhibit G at 9
(emphasis added).
Once again, the trial court’s Brady analysis was directly contrary to existing
case law. A prosecutor’s obligation to provide a defendant with exculpatory
material exists “irrespective of the good faith or bad faith of the prosecution.”
21
ME1 44392110v.1
Cone v. Bell, 556 U.S. 449, 451 (2009). Brady itself holds that a due process
violation may exist “irrespective of the good faith or bad faith of the prosecution.”
373 U.S. at 87; see Wright, 91 A.3d at 987 (quoting Brady, 373 U.S. at 87).
Against this backdrop, the trial court’s error is pellucid. Despite the State’s
repeated violations of Brady, the trial court fundamentally misunderstood the
requirements of the doctrine, and it failed to ensure a fair trial, “undermin[ing]
confidence in the outcome of the trial.” See Wright, 91 A.3d at 988 (quoting Kyles,
514 U.S. at 434). Because the resulting verdict is unworthy of confidence, based
as it is on a false factual premise, this Court should remand for a new trial. See
Risper, 250 A.3d at 92.
22
ME1 44392110v.1
II. THE TRIAL COURT’S FAILURE TO ENFORCE BRADY DESPITE
FINDING THAT THE STATE HAD VIOLATED FRANKS STYMIED
MCGUINESS’S INVESTIGATION OF POSSIBLE AFFIRMATIVE
DEFENSES.
Whether a defendant who has established a “colorable basis” for a selective
prosecution defense and who makes a specific request for the names of the
individuals who wrote materially false statements in a probable cause affidavit in
violation of Franks v. Delaware, 438 U.S. 154 (1978), is entitled to that
information under Brady. A1494-A1500.
Claims of Brady violations present constitutional questions of law reviewed
de novo. Wright, 91 A.3d at 982.
C. Merits of the Argument
The State has never prosecuted anyone under 29 Del. C. § 5805 (first
enacted in 1974) or 29 Del. C. § 6903 (first enacted in 1996)—until now.
McGuiness had the right to know why she was the first. On this basis, the trial
court recognized that McGuiness had a “colorable basis” for a selective
prosecution defense. Exhibit B at 5. Nevertheless, the trial court’s erroneous
Brady rulings stymied her investigation of that defense and a possible vindictive
prosecution defense, leaving her with no factual basis to request a jury instruction
23
ME1 44392110v.1
on either. Because these errors culminated in an unfair trial, this Court should
remand for a new trial.
Under Brady, evidence undermining “the thoroughness and even the good
faith of the investigation” must be disclosed. Kyles, 514 U.S. at 445. “A common
trial tactic of defense lawyers is to discredit the caliber of the investigation or the
decision to charge the defendant, and we may consider such use in assessing a
possible Brady violation.” Id. (quoting Bowen v. Maynard, 799 F.2d 593, 613
(10th Cir. 1986)); see Dennis, 834 F.3d at 313 (granting writ of habeas corpus due
to suppressed Brady material that defense counsel could have used to “discredit the
Commonwealth’s primary witness” and “highlight the shoddiness of the
Commonwealth’s investigation”)
“A defendant’s decision to pursue or disclaim an affirmative defense
instruction is not made in a vacuum; defendants must evaluate the evidence
available to them and determine whether seeking the instruction is likely to help or
harm their cause.” United States v. Cessa, 861 F.3d 121, 131 (5th Cir. 2017).
“Denying defendants access to evidence they are entitled to under Brady can
significantly change this risk calculus. For this reason, courts routinely find that
evidence supporting an affirmative defense is exculpatory and, therefore, favorable
under Brady.” Id.
24
ME1 44392110v.1
At a Franks hearing that resulted in a rare loss for the State, Robinson
admitted that he wrote false statements in a probable cause affidavit. A2515:9-
A2517:5. At trial, Robinson attributed authorship of the affidavit for the first time
generally to an “investigative team” comprised of “multiple lawyers.” A4481:21-
A4496:22. Consequently, McGuiness propounded a Brady request for
all communications between Robinson and any lawyer or investigator

in the Attorney General’s office pertaining to the drafting of the
affidavit of probable cause and the sharing of information pertaining
to the topics discussed and the facts alleged in the affidavit between
and among the ‘investigative team’ (as described by Robinson).
A1989. The next day, McGuiness renewed her request in camera. A4541-A4545.
The State then revealed that the “investigative team” generally involved in drafting
the probable cause affidavit included lead trial counsel for the State as well as the
Chief Deputy Attorney General and other high-ranking Department of Justice
attorneys. A4554:22-A4555:2. When McGuiness pressed to know who wrote the
false statements specifically, the trial court refused to order the State to respond.
A4559.
Back in front of the jury, when McGuiness asked Robinson, “[w]ho are the
human beings that wrote the words that are in the search warrant?” the State
objected, and the trial court sustained the objection. A4561:17-A4564:3. The
record is thus silent as to who actually wrote the false statements in the probable
cause affidavit.
25
ME1 44392110v.1
McGuiness was entitled to know who wrote the false statements that were
made under oath in the probable cause affidavit for at least three reasons. The
evidence was clearly exculpatory and material because it was evidence that further
undermined “the thoroughness and even the good faith of the investigation” against
her. See Kyles, 514 U.S. at 445. This was a central pillar of McGuiness’s defense,
and she argued repeatedly to the jury that it could not find her guilty beyond a
reasonable doubt because of the falsehoods, mistakes, and myopic focus that
characterized the State’s investigation. A2629-A2678; A5006-A5050. The trial
court’s refusal to order the State to provide the evidence, and its stifling of
McGuiness’s questions designed to identify the false statements’ author(s), cannot
be countenanced under Brady and its progeny. For this reason alone, the trial
court’s decision constitutes reversible error. See Kyles, 514 U.S. at 445; Cessa,
861 F.3d at 131.
The evidence was also potentially supportive of her already-colorable
selective prosecution defense, see Cessa, 861 F.3d at 131, and valuable to her
inquiry into a vindictive prosecution defense, which she identified for the trial
court, see A4547. The trial court’s error was compounded by the State’s failure to
avail itself of the trial court’s offer to review the requested material in camera.
A4559:12-15.
26
ME1 44392110v.1
Neither McGuiness nor this Court should be required to take the good
motives of the investigative team as an article of faith in this unprecedented
prosecution, yet that is what the trial court’s ruling forced her to do. For these
reasons, the trial court’s refusal to order the State to comply with McGuiness’s
request for evidence regarding who wrote the false statements specifically violated
Brady. This Court therefore should remand for a new trial.
27
ME1 44392110v.1
III. THE TRIAL COURT FAILED TO RECOGNIZE THE LACK OF
EVIDENCE SUPPORTING COUNT ONE (CONFLICT OF
INTEREST).
Whether the trial court erroneously denied McGuiness’s Motion for
Judgment of Acquittal by failing, as the State did, to properly define the class of
comparators as required by 29 Del. C. § 5805 and by failing to recognize the lack
of evidence presented by the State in support of Count One. A1106-A1116.
This Court reviews the denial of a motion for judgment of acquittal de novo.
Flonnory v. State, 893 A.2d 507, 537 (Del. 2006).
C. Merits of Argument
Count One charged McGuiness with Conflict of Interest under 29 Del. C.
§ 5805. To convict McGuiness of Count One, the State had to prove that, inter
alia, McGuiness had a “personal or private interest” in the hiring of Daughter. 29
Del. C. § 5805. The trial court instructed the jury—correctly—that this element
required proof that Daughter received a financial benefit not available to others of
the “same class or group of persons.” A1073. The State attempted to prove this
element by myopically defining the relevant “same class” of OAOA casual-
seasonal employees as one which consisted of a small and dissimilar subset of
OAOA casual-seasonal employees, as opposed to all of the OAOA’s casual-

28
ME1 44392110v.1
seasonal employees. This narrative, and the evidence presented in support thereof,
failed to prove this necessary element of Conflict of Interest.
Daughter was an OAOA casual-seasonal employee. Logic, and the plain
meaning of the phrase “same class or group of persons,” compels an inquiry into
the other OAOA casual-seasonal employees’ employment conditions, but the State
failed to present sufficient evidence of such at trial. The law does not permit the
State to arbitrarily define a small subset of OAOA’s casual-seasonal employees as
relevant comparators.
The evidence at trial identified a total of 10 OAOA casual-seasonal
employees in addition to Daughter. Five were identified only by name: Colin
Donnelly, Connor Perry, Quinn Ludwicki, John Repass, and Grandville Brown.
A1157-A1208, A4659, A4662-A4663. None of these employees testified at trial.
The only evidence pertaining to them showed that Quinn Ludwicki was paid more
per hour than Daughter. A5156. There is nothing at all about the working
conditions or financial benefits afforded to the other four.
And there is nothing in the record about any other possible OAOA casual-
seasonal employees who may have worked at OAOA, such as even their names,
wages, or privileges. Yet the State was required to prove that Daughter received
better financial treatment than “others who are members of the same class or group
of persons.” A1068-A1103. The absence of any evidence of such must result in a

29
ME1 44392110v.1
simple (rational) conclusion: the State failed to prove beyond a reasonable doubt
that Daughter received a benefit not equally available to the other five casual-
seasonal employees mentioned at trial by name only. Therefore, no rational jury
could convict on that basis.
Instead, the jury was left only with evidence pertaining to the five OAOA
casual-seasonal employees who testified at trial: Rooslie Maurice, Lizbethmary
Vargas, Lydia August, Kyra Marshall, and Virginia Bateman.
Maurice and Vargas were not in the same group of persons as Daughter.
They were OAOA’s front-desk receptionists. A2779:14, A2780:3-4. They had to
be in the office to greet visitors, answer telephone calls, and complete other in-
office administrative tasks. A2781:1-7. August, Marshall, and Bateman were
Daughter’s true comparators. They all worked on communications, graphics, and
outreach. A3785-A3786. This work could be done remotely, which Daughter
did—alongside Marshall and Bateman. A3062; A4817-A4818.
Importantly, Daughter did not receive financial benefits beyond those
afforded to August, Marshall, and Bateman. The evidence showed:
 All four earned the same wages. A5159: A5157; A3779:10-12 (Daughter);
A3807:15-23, A3808:13-17 (Bateman); A4812:23-A4813:6 (Marshall);
A4851:11-13 (August).
30
ME1 44392110v.1
 All four had a 29.5-hours-per-week working limit. A1316-1317 (Bateman);
A1287-A1288 (Daughter); A1338 (Marshall); A1354-A1355 (August). In
fact, August actually worked more than anyone else on two occasions.
A5149-A5159 (August payroll records); A1267-A1268. August worked
over the casual-seasonal hour maximum and worked more hours in a pay
period than Daughter ever did.
 All four “banked hours” if they worked more than 29.5 hours in a week.
A3098:23-A3100:23 (Bateman); A3782:4-A3783:6, A3783:18:3784:8
(Daughter); A4829:17-A4830:23 (Marshall); A4856:9-A4857:18 (August).
 Their work consisted of the same tasks. A3059:13-17 (Bateman);
A3785:18-A3786:3 (Daughter); A4814:1-15 (Marshall); A4849:23-
A4850:11 (August).
 All four drove McGuiness to work events, either in her personal or Fleet
Services car. A3084:1-A3088:5 (Bateman); A3787:12-A3788:1, A3089:21-
A3812:12, A3812:23-A3814:13 (Daughter); A4831:12-A4833:18
(Marshall); A4852:4-5, A4852:21-A4853:13 (August).
Furthermore, some of the “benefits” the State alleged were not financial in
nature. For example, the State alleged Daughter received a financial benefit
because of a “paper authorization” allowing her to work up to 37.5 hours per week.
31
ME1 44392110v.1
That authorization was a clerical error, and the State showed no evidence that
McGuiness or Daughter authorized or knew about it.
Worse yet, an OAOA LAP report from June 8, 2019 showed that August had
her hours capped at 37.5 hours per week. A1486-1487. The State argued to the jury
that only Daughter’s hours were capped at 37.5 per week. A4978. That argument
was false. And, importantly there is no evidence Daughter was ever paid for more
than 29.5 hours per week, and she testified that she thought, as a casual-seasonal
employee, she could only be paid for 29.5 hours per week. A3780:17-A3781:3.
Hence the need to “bank” hours.
The State argued that Daughter received some kind of unique financial
benefit because she was allowed to work remotely while at college. But that
argument is wholly speculative, because the State never asked Bateman or
Marshall (or any other witness) whether they wanted to work remotely while at
college. To the contrary, the evidence suggests McGuiness planned to offer
Bateman the opportunity to work remotely and may have done so. A5150.
Similarly, the record says nothing as to whether the five casual-seasonal OAOA
employees identified by name only worked remotely while in college.2
2
In fact, three of those employees worked remotely for OAOA while in college.
The State’s argument to the contrary is false. See Section I, supra.
32
ME1 44392110v.1
Speculation cannot form the basis for the jury’s verdict. Derrickson v. State, 321
A.2d 497, 502 (Del. 1974).
When McGuiness raised the above issues in her Rule 29(c) motion, the trial
court failed to define the appropriate “same class or group of persons.” It assumed
that, for purposes of Count One, a “class or group” could be a small, cherry-picked
subset of casual-seasonal OAOA employees as defined by the State. That misreads
and misapplies the law. Section 5805(a)(2)a. requires a comparison between
financial benefits conferred to Daughter with those available to the “same class or
group” as a whole. It was not enough to prove that Daughter may have received a
benefit not available to a small subset of the class.
The trial court then failed to address how Daughter was treated preferentially
other than the ability to work remotely while at college. Exhibit K at 9 (“[T]he
bottom line, which is undisputed, is that Daughter was allowed to continue to work
after she left Delaware to attend college in Charleston, South Carolina and received
payments during those months.”).
The trial court’s analysis was deeply flawed, leading to its erroneous denial
of the Rule 29(c) motion as to Count One. This Court should therefore reverse
McGuiness’s convictions.
33
ME1 44392110v.1
IV. THE TRIAL COURT’S FAILURE TO DISMISS COUNT FIVE OR
EXCLUDE EVIDENCE IRRELEVANT TO ITS PROOF RESULTED
IN UNFAIR PREJUDICE TO MCGUINESS.
Whether the trial court abused its discretion by admitting evidence that was
logically irrelevant to Count Five, unfairly prejudicial, and amounted to
inadmissible character evidence. A228-A251; A530-A534; A535-A547; A1500-
A1517.
This Court reviews evidentiary rulings for abuse of discretion. Houston v.
State, 251 A.3d 102, 108 (Del. 2021).
1. The Trial Court’s Failure to Dismiss Count Five or Exclude

Evidence.
On February 25, 2022, McGuiness filed her Motion to Dismiss Count Five
based on the Original Indictment’s failure to (1) provide her with notice of the
specific conduct she was being prosecuted for; (2) protect her from unfair surprise;
and (3) preclude subsequent prosecution for the same offense. A228-A251. The
motion argued that this failure stemmed from the Original Indictment’s failure to
allege facts supporting several of the essential elements of Count Five, particularly
any facts suggesting McGuiness possessed the requisite mens rea required by 11
34
ME1 44392110v.1
Del. C. § 3532. Specifically, it failed to allege McGuiness knew she was under
investigation until the time of the State’s grand jury subpoena on September 11,
2021 and that she knew who the witnesses against her might be.
In tacit recognition of the Original Indictment’s deficiencies, the State re-
indicted McGuiness. A270-A282. The Superseding Indictment added allegations
of acts taking place in 2022, after McGuiness received the grand jury subpoena,
but still failed to properly allege the crime.
The trial court agreed with McGuiness that the statute required proof of her
awareness of a trial, proceeding, or inquiry against her and the identities of the
witnesses against her. Exhibit D at 4-6. It nonetheless held that the Superseding
Indictment sufficiently pled Count Five, but warned the State that proving acts of
intimidation occurred before September 11, 2021, would be difficult. Id. at 7.
McGuiness filed a motion in limine on May 13, 2022 requesting that the
State be precluded from presenting any evidence in support of Count Five
occurring before September 11, 2021 because there was no evidence that she knew
of an investigation before that date. A530-A534.
The trial court denied the motion, explaining it would consider such
evidence on a case-by-case basis. It once again warned the State that evidence of
acts occurring prior to September 11, 2021, seemed problematic. See A2560:5–18;
A2561:8–10; A2565:6-11 (“But if I was in your position, if you had good

35
ME1 44392110v.1
intimidation after September 11th, I wouldn’t mess up the record as to what are
things that could reasonably be interpreted to be managing an office, perhaps not in
a way that people like, but managing an office.”).
McGuiness repeatedly renewed her objections during trial to the testimony
of State witnesses purportedly called to support Count Five as irrelevant, unfairly
prejudicial, and inadmissible character evidence. A2846:23-A2847:4; see D.R.E.
402, 403, 404(a). The State continued to represent that the witnesses’ testimonies
were somehow relevant to Count Five. McGuiness countered each time that the
alleged acts occurred in either 2019, 2020, or early 2021—well before she could
have had any awareness of an investigation, and well before the individuals in
question were “witnesses” as defined by 11 Del. C. § 3531(3). These objections
were overruled. A2843-A2856; A2939-A2941; A2954-A2964; A3335-A3351.
McGuiness also repeatedly asked the trial court to order the State to provide
an offer of proof explaining the relevance of acts occurring prior to September 11,
2021. The trial court denied each of these requests. A2843-A2856; A2939-
A2941; A2954-A2964; A3335-A3351.
Instead, the trial court relied upon the State’s assurances that the evidence
was relevant. On several occasions, it remarked its intent to let the State “try its
case.” The trial court further promised that if the evidence was not relevant, it
would “make the hard call” at the end of the State’s case. A2941. It never did so.
36
ME1 44392110v.1
Ultimately, the State never lived up to its representations. It never presented
any evidence suggesting McGuiness knew she was under investigation or who the
witnesses against her might be. Thus, none of the evidence relating to uncharged
acts occurring before September 11, 2021 was relevant to Count Five. The
evidence was thus inadmissible and unfairly prejudicial and compromised every
aspect of McGuiness’s trial.
2. The Admitted Evidence Amounted to Inadmissible

Character Evidence.
The erroneous admission of character evidence is well established as a high
danger to a defendant’s right to a fair trial. Baumann v. State, 891 A.2d 146, 149
(Del. 2005) (“A jury may not hear about a person’s bad character, else they might
punish him for his bad character rather than the issues at trial.”); Edward J.
Imwinkelried, Uncharged Misconduct Evidence § 1.3 (2022 ed.) (“Evidence of a
criminal defendant’s uncharged misconduct creates a risk that the jury will
penalize a defendant for his or her bad character.”).
At trial, prior to the testimony of State witness Jonathan Purdy, McGuiness
objected to evidence of e-Record requests to access the State email accounts of
certain OAOA employees made prior to the date of her knowledge. A2843-2858.
Eight e-Record requests were admitted, however, only for Purdy to testify that
none of the subjects of the requests were aware of the requests being made.
37
ME1 44392110v.1
A2929-A2930. The evidence was therefore logically irrelevant to proof of Count
Five. McGuiness moved to strike the testimony relating to the e-Record requests,
but the trial court denied the motion. A2939-A2041.
McGuiness objected further to the testimony of various State witnesses.
Each objection argued that their testimony would be irrelevant, unfairly
prejudicial, and impermissible character evidence. A3335-A3351. The trial court
allowed nearly all of their testimonies. Andrena Burd, Elizabeth Vasilikos, and
Kelsey Thomas all were allowed to testify about events that took place before
September 2021—some dating back to 2019, long before the investigation began.
A3533-A3534; A3883; A4114. Thomas also admitted that she told no one at
OAOA that she took her complaints about McGuiness to the State. A4160-A4161.
Melissa Schenck and Dawn Haw-Young complained generally about workplace
conditions, and nothing in the evidence suggested that McGuiness knew they were
witnesses against her. A3352-A3371. Dan Hamilton testified that he did not
become a witness until after the events he described in his testimony took place.
A3433.
None of the evidence was relevant. The trial court abused its discretion by
admitting so much irrelevant and prejudicial character evidence. See Thompson v.
State, 205 A.3d 827, 834 (Del. 2019) (“An abuse of discretion occurs when a court
has exceeded the bounds of reason in light of the circumstances, or so ignored

38
ME1 44392110v.1
recognized rules of law or practice so as to produce injustice.” (quoting McNair v.
State, 990 A.2d 398, 401 (Del. 2010))).
3. The Trial Court Failed to Properly Analyze What

Amounted to Inadmissible Character Evidence.
The trial court also abused its discretion by admitting the uncharged
evidence without analyzing it as character evidence. The State is forbidden from
offering evidence of uncharged misconduct for the purpose of creating a general
inference of bad character. D.R.E. 404(b); Getz v. State, 538 A.2d 726, 730 (Del.
1988); DeShields v. State, 706 A.2d 502 (Del. 1998). This Court has established
guidelines for the admission of evidence under D.R.E. 404(b). Getz, 583 A.2d at
734. The trial court failed to apply the Getz and DeShields factors.
The erroneous admission of irrelevant and unfairly prejudicial character
evidence inevitably prejudiced the jury’s consideration of Counts One, Three, and
Four. McGuiness expressed concern about “death by a thousand cuts” and the
inadequacy of dismissing Count Five at the end of trial. A3894; A4145-A4146;
A4286. Each time, the trial court waited to see whether the State would ever
present any evidence supporting Count Five. E.g., A2940-A2941; A3513; A4288.
However, when the time came for the trial court to make good on its
promise, it did nothing. A4731-A4733. The trial court then compounded its error
by denying McGuiness’s request that the jury be instructed to disregard evidence
39
ME1 44392110v.1
of events occurring before June 15, 2021, unless it related to one of the other
charged Counts. A4729.
The trial court’s indecision prejudiced McGuiness’s right to a fair trial. The
inadmissible character evidence allowed the State to portray McGuiness as an
individual who poorly supervised her employees. See, e.g., A5000 (“audacity to
question what does this confidentiality mean”); A5003 (“the monitoring is now
taken up a level”); A5004 (“Look at how she reacted to key events and key people.
Though the evidence itself, the defendant’s conduct tells you that she’s guilty.
That is consciousness of guilt.”); A5005 (“intimidating employees who had the
courage to confront her or question her misconduct”); A5073 (“overwhelming
pattern of [e-Record] surveillance against key people who knew key things and the
time in which they knew it”). This forced McGuiness’s counsel to describe her as
a “bad,” “mean,” or “creepy” boss to clarify that such characteristics, while not
desirable, are not crimes. A2641; A5033.
The trial court acquitted McGuiness of Count Three, concluding no rational
jury could have convicted her. Exhibit K at 15. This suggests the jury’s
consideration of the other Counts was prejudiced by the inadmissible character
evidence.
The admission of this inadmissible character evidence can be cured only by
a new trial. See Waters v. State, 242 A.3d 778, 783 (Del. 2020) (admitted trial
40
ME1 44392110v.1
evidence later determined to be inadmissible and prejudicial can be cured by a new
trial). There is no question that the admission of character evidence prejudiced
McGuiness.
41
ME1 44392110v.1
V. THE FAILURE TO DISMISS OR ACQUIT ON COUNT THREE
PRIOR TO SUBMISSION TO THE JURY PREJUDICIALLY
SPILLED OVER INTO THE OTHER COUNTS.
Whether the failure to dismiss, or acquit, McGuiness of Count Three led to
the admission of otherwise inadmissible evidence and improper jury instruction
that prejudiced the jury’s consideration of other Counts. A301-A371; A458-A571;
A1116-A1125.
Claims of prejudicial spillover are subject to plenary review. United States
v. Fattah, 914 F.3d 112, 186 (3d Cir. 2019).
Though neither the facts nor the law changed between when McGuiness
filed her pretrial Motion to Dismiss Count Three and her post-trial Rule 29(c)
motion, the trial court only finally adopted her reasoning when overturning the
Count Three guilty verdict. This delay led to the admission of highly prejudicial
evidence and instruction, which spilled over to the remaining Counts.
Under the doctrine of prejudicial spillover, a conviction on one charge may
be tainted by evidence admitted in support of another, later-overturned charge.
United States v. Wright, 665 F.3d 560, 575 (3d Cir. 2012), as amended (Feb. 7,
2012). Spillover also occurs “when evidence of one offense is used by the jury to
42
ME1 44392110v.1
infer bad character, leading to a conviction on the other offense based on this
assessment of the defendant and not the evidence supporting the criminal charge.”
United States v. Lane, 791 F.2d 935 (6th Cir. 1986). The remedy for prejudicial
spillover is a new trial on the “‘tainted’ count.” Wright, 665 F.3d at 575; see
United States v. Pelullo, 14 F.3d 881, 900 (3d Cir. 1994) (remanding where “the
jury may have been influenced” by prejudicial spillover and recognizing that
although “a single factor separately considered may not ... produce[] sufficient
prejudice to influence the jury ... all the factors combined caused a strong
cumulative effect which resulted in the conviction” on the tainted charge (emphasis
added)).
The State never had a sound legal foundation for Count Three. A301-A371.
On April 4, 2022, McGuiness moved pursuant to Rule 12(b)(2) to dismiss Count
Three because it failed to charge an offense. Id. On May 13, 2022, the trial court
rejected that argument. Exhibit E. The matter then proceeded to trial, where the
jury heard three days’ worth of evidence relevant only to Count Three. See, e.g.,
A2995-A3047, A3210-A3281; A3604-A3769. At the close of the State’s case,
McGuiness moved pursuant to Rule 29(a) for judgment of acquittal on Count
Three based on the same legal argument raised in her motion to dismiss. A4695-
A4733. The trial court reserved decision on the motion pursuant to Rule 29(b).
A4732-A4733. McGuiness then presented her case and thereafter renewed her
43
ME1 44392110v.1
Rule 29(a) motion based on the same legal argument raised in her motion to
dismiss and original Rule 29(a) motion. A4968-A4969. The trial court again
reserved its decision. A4969. The jury was then instructed that Count Three could
serve as a basis for a guilty verdict on Count Four. A1078-A1080. The jury
subsequently found McGuiness guilty on Counts One, Three, and Four. A5115-
A5116. McGuiness once more moved for judgment of acquittal, this time pursuant
to Rule 29(c), based on the same legal argument raised in her motion to dismiss
and Rule 29(a) motions. A5116-A5117; A1116-A1125. Finally, the trial court
agreed with McGuiness’s argument all along and entered judgment of acquittal on
Count Three. Exhibit K at 10-15.
None of this ever should have happened. In its August 30, 2022, Opinion,
the trial court adopted in full the very same legal argument McGuiness made since
April 4, 2022. Every fact necessary to reach this conclusion was known before
trial began, and none of those facts were in dispute. Compare A301-A371, with
A1116-A1125, and Exhibit K at 10-15. There is no doubt McGuiness was
profoundly prejudiced by the trial court’s failure to dismiss or enter a Rule 29(a)
judgment of acquittal on Count Three. The convictions of Counts One and Four
are evidence thereof.
Count Three spilled into Count Four because they were intertwined by
definition. The trial court instructed the jury that Count Three could serve as a
44
ME1 44392110v.1
basis for liability under Count Four. A1078-A1080. A new trial without such
“intermingled” jury instructions is necessary. See Wright, 665 F.3d at 577
(remanding where “the jury instructions on that Count intermingled the two
theories”).
Count Three spilled into Count One because, as described in Section III
supra, the evidence was plainly insufficient to support a conviction on Count One.
That conviction is proof the jury’s passions were inflamed by the State’s rhetoric
and otherwise inadmissible evidence.
The trial court’s indecision permitted the State to arouse the jury with
language that would otherwise have had no place in this trial:
 “Delaware’s Auditor of Accounts, the public official designed

to ensure that others follow the State’s fiscal rules, was instead,
the one breaking those rules.” A2607.
 “You will hear of that fraud. You will hear that she structured
what’s called a no-bid contract to her former political
consultant and arranged payments to willfully avoid compliance
with Delaware law.” A2608.
 “I told you she arranged a no-bid contract with State money for
a company called My Campaign Group owned by one of her
former campaign consultants, and she arranged payments to
that company in a way designed to avoid compliance with the
procurement rules.” A4975.
 “Kathy McGuiness knew just how to play the system, and she
did.” A4991.
45
ME1 44392110v.1
The “cumulative effect” of these statements “likely left an impression with the jury
that [McGuiness] routinely engaged in corrupt and illegal activities and thus might
have had the propensity” to abuse her office, i.e., Counts One and Four. See
United States v. Murphy, 323 F.3d 102, 122 (3d Cir. 2003).
Accordingly, the trial court’s decision to let the jury hear evidence and
instruction regarding a legally indefensible charge was erroneous. This Court
therefore should remand for a new trial.
46
ME1 44392110v.1
VI. COUNTS ONE AND FOUR WERE UNCONSTITUTIONALLY
MULTIPLICITOUS.
Whether Counts One and Four were unconstitutionally multiplicitous.
A1132-1141.
This Court’s review is de novo. Hoennicke v. State, 13 A.3d 744, 746 (Del.
2010).
Multiplicity prohibits “multiple charges under separate statutes….” White v.
State, 243 A.3d 381, 397 (Del. 2020). “[T]he question is whether, both sections
being violated by the same act, the accused committed two offenses or only one[,]
for which the inquiry is whether each provision requires proof of a fact which the
other does not.’” Id.; 11 Del. C. § 206 (a defendant cannot “be convicted of more
than 1 offense if… [o]ne offense is… established by the proof of the same or less
than all the facts required to establish the commission of the offense charged”).
Here, the jury instructions were as follows:
The State alleges that the Defendant committed Official Misconduct

either by (1) “hir[ing] her daughter and her daughter’s friend into state
employment, affording her daughter benefits not available to other
state employees,” or (2) by “structuring payments in a no-bid contract
to a political campaign consulting company.”
47
ME1 44392110v.1
In order to find the Defendant guilty of Official Misconduct, you
must unanimously agree that one or both of these allegations have
been established by the State.
A1082-A1083.
Consequently, a conviction on Count Four required proof of either Count
One, Three, or both, plus proof that McGuiness “intended to obtain a personal
benefit….” Id. Thus, Counts One and Three were “included in another” (Count
Four) because they were “established by the proof of… less than all the facts
required to establish” Count Four, see 11 Del. C. § 206, and neither Count One nor
Count Three “required proof of a fact which” Count Four did not. See White, 243
A.3d at 397.
Accordingly, this Court should reverse McGuiness’s convictions. See
Brown v. Ohio, 432 U.S. 161, 166 (1977).
48
ME1 44392110v.1
VII. THE TRIAL COURT VIOLATED THE DELAWARE
CONSTITUTION BY COMMENTING ON THE CREDIBILITY OF A
STATE WITNESS.
Whether the trial court violated Article IV, Section 19 of the Delaware
Constitution by commenting upon the credibility of a State witness. A1524-A1528
B. Scope of Review
This Court reviews constitutional claims de novo. Norwood v. State, 991
A.2d 18 (Del. 2010).
During trial, the trial court defended Robinson’s use of false statements as an
“investigative technique” and proclaimed in the jury’s presence that Robinson was
not lying. The trial court’s comments violated Article IV, Section 19 of the
Delaware Constitution.
Article IV, Section 19 prevents trial judges from commenting upon the
credibility of witnesses. E.g., Herring v. State, 805 A.2d 872, 876 (Del. 2002);
Brown v. State, 105 A.2d 646, 652 (Del. 1954) (Tunnell, J., dissenting) (“Article 4,
Sec. 19, of the constitution forbids judges in jury trials to comment on the weight
or credibility of the evidence…”). “This prohibition applies equally to the judge’s
instructions to the jury and to comments made by the judge in the course of the
trial.” Wright v. State, 405 A.2d 685, 689 (Del. 1979) (emphasis added); see also
49
ME1 44392110v.1
Randy J. Holland, The Delaware Constitution: A Reference Guide 149–51 (2002)
(a comment prohibited by Article IV, Section 19 “is an expression made directly or
indirectly by the court that conveys to the jury the court’s estimation of the truth,
falsity, or weight of testimony”).
At trial, defense counsel examined Robinson about the statements he made
in May and June 2021 in which he told various witnesses he was allegedly
“contacting a bunch of people.… throughout state government” to investigate
casual-seasonal employees whose employment ended or began during the
pandemic. A4890-A4892. Counsel intended to show that the witnesses would
therefore not have known the State was investigating McGuiness, and so could not
have informed McGuiness she was under investigation. Robinson admitted to
counsel that he only contacted employees of OAOA, but refused to concede that
representing he contacted people “throughout state government” was false. Id.
When counsel pressed Robinson on the falsity, the State objected, arguing
the question had been “asked and answered.” A4892. The trial court sustained the
objection on different grounds, declaring in the presence of the jury:
THE COURT: If you want to pursue this, we all know what it is. It’s
an investigative technique used by the officer. You want to ask him
that, that’s fine. But to imply that because this is false, he is lying.
That’s simply unfair, Mr. Wood. So you can ask him about
investigation techniques if you’d like. But to imply it otherwise is not
acceptable.
50
ME1 44392110v.1
MR. WOOD: I think I was trying --
THE COURT: Move on.3
A4892-A4893. The trial court’s comments violated the Delaware Constitution.
While a trial court may have discretion to “exercise reasonable control over
the mode and order” of a witness interrogation, D.R.E. 611, that discretion does
not permit “an expression by the court, directly or indirectly, that conveys to the
jury the court’s estimation of the truth, falsity or weight of testimony in relation to
a matter at issue.” Herring, 805 A.2d at 876. The trial court’s comments violated
that well-settled prohibition.
Nor was it appropriate for the trial court to inform the jury of its view that
false statements made within an “investigative technique” were not actually “false”
statements—a view endorsing the witness’s refusal to admit the statements were
false. That also conveyed to the jury that falsehoods are somehow acceptable
when uttered by police. Neither the law nor the dictionary definition of “false”
provides such a distinction,4 and Article IV, Section 19 provides that whether the
3
The first of the word “lie” during Robinson’s testimony was by the trial court.
Defense counsel carefully avoided use of the word. The trial court was not
similarly circumspect.
4
Black’s Law Dictionary (11th ed. 2019) defines “false” as “1. Untrue; 2.
Deceitful; lying; 3. Not genuine; inauthentic; 4. Wrong; erroneous.” Thus, the
Court’s comment was erroneous because Robinson’s comment was, by definition,
“false.”
51
ME1 44392110v.1
utterance of an intentional falsehood should be considered a mark against a
witness’s credibility is a decision reserved for the jury and forbidden to the trial
court.
The trial court’s error was not anodyne. McGuiness’s trial strategy was to
show the State’s investigation was unfair—and thus, not to be trusted—because of
the State’s false statements and half-truths made throughout the investigation and
case. Yet despite the obvious importance of the issue, the trial court proceeded to
unconstitutionally indicate its disapproval of the strategy in front of the jury.
Accordingly, this Court should reverse and remand for a new trial—one
without the trial court’s biases prejudicing the jury’s opinion.
52
ME1 44392110v.1
VIII. THE TRIAL COURT MISINTERPRETED 10 DEL. C. § 3925 AND
ERRONEOUSLY DENIED MCGUINESS APPOINTMENT OF
PRIVATE COUNSEL.
Whether the trial court misinterpreted 10 Del. C. § 3925 in its October 28,
2021, Order denying McGuiness’s Petition for Appointment of Private Counsel.
A42-A49.
Questions involving statutory interpretation are reviewed de novo. Freeman
v. X-Ray Associates, P.A., 3 A.3d 224, 227 (Del. 2010).
McGuiness filed a petition requesting the appointment and compensation of
undersigned counsel as private counsel in the matter. A42-A49. Pursuant to
Delaware Supreme Court Rule 68, McGuiness argued that as a State officer with
charges against her related to acts arising from her role as State officer, she should
be appointed private counsel due to the State’s conflict in this criminal matter.
A42-A49. McGuiness also argued she should be indemnified for the costs of such
representation. Id.
The State acknowledged a conflict of interest prevented their representation
of McGuiness, but otherwise opposed the Petition. A98-A106. Its opposition was
based largely upon 10 Del. C. § 3925, which provides that

53
ME1 44392110v.1
[a]ny public officer or employee, in a criminal or civil action against
the person arising from state employment, shall be entitled to petition
the court for a court-appointed attorney to represent the person’s
interests in the matter. If the judge, after consideration of the petition,
examination of the petitioner and receipt of such further evidence as
the judge may require, determines that the petition has merit, the
judge shall appoint an attorney to represent the interests of such public
officer or employee… If the court determines that the Department [of
Justice] is unable to represent such public officer or employee, the
court may appoint an attorney from the Office of Defense Services in
criminal actions only, and in civil actions may appoint an attorney
licensed in this State…
A100 (emphasis added).
The President Judge5 denied the Petition without a hearing or further
argument. The court below did find merit in the Petition, Exhibit A at 4-5, which
required it to appoint an attorney to represent McGuiness. See 10 Del. C. § 3925
(“If the judge… determines that the petition has merit, the judge shall appoint an
attorney to represent the interests of such public officer or employee.”) (emphasis
added). However, because the court below erred in its interpretation of the statute,
it then further erred by not considering appointment of counsel from the private bar
at public expense as permitted by Rule 68.
Specifically, the court below reasoned that § 3925’s language was “clear and
unambiguous,” and so its “plain meaning” controlled. Exhibit A at 3. It explained
5
The President Judge handled the decision on the Petition. From this point on, she
will be referred to as “the court below.”
54
ME1 44392110v.1
the statute contained a “simple process” wherein a State officer criminally charged
with conduct stemming from her State employment is first entitled to a defense
provided by the State, however, should there be a conflict of interest preventing it
from representing the State officer, then only an Office of Defense Services
(“ODS”) attorney may be appointed to represent the State officer instead. Id. It
therefore concluded that, notwithstanding the plain, contrary language of Rule 68,
§ 3925 barred appointment of private counsel at public expense. Id. at 4. That
interpretation is erroneous, as it ignores the statute’s permissive language.
“The most important consideration for a court in interpreting a statute is the
words the General Assembly used in writing it.” Salzberg v. Sciabacucchi, 227
A.3d 102, 113 (Del. 2020). “The court must ‘give the statutory words their
commonly understood meanings.’” Id. (quoting Kofron v. Amoco Chems. Corp.,
441 A.2d 226, 230 (Del. 1982)). The court’s role is therefore “to determine and
give effect to the legislature’s intent.” Wild Meadows MHC, LLC v. Weidman, 250
A.3d 751, 756 (Del. 2021) (citing LeVan v. Indep. Mall, Inc., 940 A.2d 929, 932
(Del. 2007)).
This Court must therefore interpret 10 Del. C. § 3925 based on the words the
legislature actually used in writing it. The language from § 3925 most relevant here
is this:
55
ME1 44392110v.1
If the court determines that the Department is unable to represent such
public officer or employee, the court may appoint an attorney from the
Office of Defense Services in criminal actions only, and in civil
actions may appoint an attorney licensed in this State.…
10 Del. C. § 3925 (emphasis added).
The court below’s reading of this language that only an attorney from ODS
may represent a State officer where there is a conflict of interest with the State
ignores the plain and ordinary meaning of the word “may.” Simply put, “may”
does not mean “shall.”
When construing a statute, “may” is to be read as permissive, and not
mandatory. Manti Holdings, LLC v. Authentix Acquisition Co., Inc., 261 A.3d
1199, 1219 (Del. 2021); see also Mason v. State, 963 A.2d 139 (Del. 2009) (when
construing a statute, “the word ‘may’ generally is permissive, not mandatory”).
Mandatory words impose a duty; permissive words grant discretion. Antonin
Scalia & Bryan A. Garner, Reading the Law: The Interpretation of Legal Texts 112
(2012).
Here, the General Assembly could have required appointment of counsel
only from ODS by substituting “shall” for “may” in the statute—it did not do so.
This Court must therefore assume that the General Assembly meant to permit
appointment of ODS when otherwise obliged to appoint counsel for a public
officer, but did not intend to require them to do so. When § 3925 is properly read,
56
ME1 44392110v.1
there is no conflict between its provisions and Rule 68, as Rule 68 permits
appointment of a member of the private bar to represent a State official accused of
a crime at public expense. The court below’s refusal to recognize this option under
Rule 68 was plainly erroneous.
Further support for this interpretation of § 3925 is to be found in the statute’s
legislative history. When first enacted in 1976, (60 Del. Laws, c. 474, § 1), § 3925
was substantively identical to the statute’s current version with one exception: the
phrase “Office of the Public Defender” was used in place of the modern statute’s
designation of ODS. When § 3925 was first enacted, the trial court would appoint
a member of the private bar to serve as conflict counsel at public expense when a
conflict prevented the Public Defender from representing a defendant. The Sixth
Amendment Center, Delaware’s Right to Counsel Deficiencies Exposed (Feb. 8,
2014) https://sixthamendment.org/delawares-right-to-counsel-deficiencies-
exposed/. The statute was amended in 2015 only to replace “Office of the Public
Defender” with “ODS.”
If the court below’s reading of § 3925 was correct, it would have been
prohibited from appointing counsel at public expense if the Public Defender’s
Office had a conflict preventing their representation, including cases where two
public officials were charged together with a crime. Consequently, one would
have the benefit of publicly-funded counsel while the co-defendant would not.
57
ME1 44392110v.1
That result would be absurd (if not unconstitutional). Absurd results must be
avoided by a court tasked with interpreting a statute. PHL Variable Ins. Co. v.
Price Dawe 2006 Ins. Tr., ex rel. Christiana Bank & Tr. Co., 28 A.3d 1059, 1071
(Del. 2011); see Hazout v. Tsang Mun Ting, 134 A.3d 274, 286 (Del. 2016) (courts
should avoid interpretations that would render a statute unconstitutional).
The court below’s erroneous interpretation of § 3925 and McGuiness’s
distrust of other State agencies due to the nature of her case forced McGuiness to
hire her own private counsel for trial and, now, this appeal. To correct this error,
McGuiness requests this Court vacate the trial court’s October 28, 2021, Order and
order a hearing on remand to determine the extent of McGuiness’s expenditures in
hiring private counsel and order reimbursement by the State for those expenses.
See Del. Supr. Ct. R. 68(e)(1)–(3) (providing for fees and costs of appointed
private counsel to be paid by the State).
58
ME1 44392110v.1
CONCLUSION
For the foregoing reasons, this Court should reverse McGuiness’s
convictions and enter a judgment of acquittal or remand for a new trial.
Dated: March 14, 2023 McCARTER & ENGLISH, LLP
/s/ Steven P. Wood

Steven P. Wood (#2309)
Chelsea A. Botsch (#6715)
Renaissance Centre
405 North King Street, 8th Floor
Wilmington, Delaware 19801
Tel.: (302) 984-6300
Attorneys for Defendant-Below,

Appellant Kathleen McGuiness
59
ME1 44392110v.1
CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of March, 2023, a true and correct copy
of the Redacted – Public Version of Appellant’s Opening Brief was served via
File & ServeXpress on the following counsel of record:
Mark A. Denney, Jr.

Nicole M. Mozee
Sean P. Lugg
Deputy Attorneys General
Delaware Department of Justice
900 N. King Street, 4th Floor
Wilmington, DE 19801
/s/ Steven P. Wood

Steven P. Wood (#2309)
ME1 44392110v.1

Opening Brief: State v. McGuiness

Uploaded by

Copyright:

Available Formats

Opening Brief: State v. McGuiness

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Opening Brief: State v. McGuiness

Uploaded by

Copyright:

Available Formats

What is the appellant appealing?

What is the appellant appealing?

What arguments is the appellant making?

What arguments is the appellant making?

EFiled: Mar 29 2023 10:43AM EDT

KATHLEEN MCGUINESS, : REDACTED - PUBLIC VERSION

APPELLANT’S OPENING BRIEF

Dated: March 14, 2023 Steven P. Wood (#2309)

Attorneys for Defendant-Below,

NATURE OF PROCEEDINGS ................................................................................. 1

SUMMARY OF ARGUMENT ................................................................................. 2

STATEMENT OF FACTS ........................................................................................ 3

I. THE STATE VIOLATED BRADY BY FAILING TO DISCLOSE

A. Question Presented ................................................................................ 9

B. Standard of Review ............................................................................... 9

C. Merits of the Argument ......................................................................... 9

1. The Evidence Was Favorable to McGuiness. ............................. 15

2. The State Suppressed the Favorable Evidence ........................... 18

3. The Suppressed Favorable Evidence Was Material.................... 20

II. THE TRIAL COURT’S FAILURE TO ENFORCE BRADY DESPITE

A. Question Presented .............................................................................. 23

B. Standard of Review ............................................................................. 23

III. THE TRIAL COURT FAILED TO RECOGNIZE THE LACK OF

A. Question Presented .............................................................................. 28

B. Standard of Review ............................................................................. 28

C. Merits of the Argument ....................................................................... 28

IV. THE TRIAL COURT’S FAILURE TO DISMISS COUNT FIVE OR

A. Question Presented .............................................................................. 34

B. Standard of Review ............................................................................. 34

C. Merits of the Argument ....................................................................... 34

1. The Trial Court's Failure to Dismiss Count Five or

2. The Admitted Evidence Amounted to Inadmissible

3. The Trial Court Failed to Properly Analyze What

V. THE FAILURE TO DISMISS OR ACQUIT ON COUNT THREE

A. Question Presented .............................................................................. 42

B. Standard of Review ............................................................................. 42

C. Merits of the Argument ....................................................................... 42

A. Question Presented .............................................................................. 47

B. Standard of Review ............................................................................. 47

C. Merits of the Argument ....................................................................... 47

VII. THE TRIAL COURT VIOLATED THE DELAWARE

A. Question Presented .............................................................................. 49

B. Standard of Review ............................................................................. 49

C. Merits of the Argument ....................................................................... 49

VIII. THE TRIAL COURT MISINTERPRETED 10 DEL. C. § 3925 AND

A. Question Presented .............................................................................. 53

B. Standard of Review ............................................................................. 53

C. Merits of the Argument ....................................................................... 53

Memorandum Opinion on Defendant’s Motion to Compel,

Letter Opinion from Court on Defendant’s Motion for a Bill

Memorandum Opinion on Defendant’s Motion to Dismiss

Order on Defendant’s Motion for Reargument, dated

Memorandum Opinion on Defendant’s Motion to Dismiss

Order on Defendant’s Motion for Reargument, dated

Order on Transfer of All Filings and Rulings of Record for Appeal

Memorandum Opinion on Defendant’s Motion for Judgment

Sentence Order, dated October 19, 2022 ..................................................... Exhibit L

Bracey v. Superintendent Rockview SCI,