A judge has chastised prosecutors for failing to turn over information to the defense in a criminal corruption case against Delaware’s state auditor, issuing a ruling that also exposed weaknesses in the state’s cyber forensics capabilities.
In a ruling Wednesday, Superior Court Judge William Carpenter Jr. prohibited prosecutors from using material from three laptops that were seized during a search of Auditor Kathy McGuiness’ office in September 2021. Carpenter said that prohibition was an appropriate sanction for prosecutors’ failure to provide information contained on laptops to the defense until April 6, more than six months after search.
Carpenter refused, however, to grant a defense motion to dismiss the indictment against McGuiness.
A spokeswoman for Attorney General Kathy Jennings declined to comment, saying the office was under a gag order. McGuiness’ defense attorney, Steve Wood, also declined to comment.
McGuiness, a Democrat who was elected in 2018 and is responsible for rooting out government fraud, waste and abuse, was indicted in October on felony counts of theft and witness intimidation, and misdemeanor charges of official misconduct, conflict of interest and noncompliance with procurement laws. A trial is scheduled to start May 31.
McGuiness has denied any wrongdoing.
The charges include allegations that McGuiness hired her daughter as a temporary employee in May 2020, even though other temporary employees had left because of the lack of available work amid the coronavirus pandemic. McGuiness is also accused of orchestrating a no-bid “communications services” contract for a company she had used as a campaign consultant when running for lieutenant governor in 2016, then deliberately keeping contract payment under the $5,000 to avoid having to get approval from the Division of Accounting.
Authorities also allege that when employees in her office became aware of McGuiness’ misconduct, she responded by trying to intimidate the whistleblowers, including monitoring their email accounts.
According to Wednesday’s ruling, Delaware Department of Justice officials seized the laptops, five USB drives and a storage disk during the September search. One of the laptops belonged to McGuiness, and another to her daughter.
The hard drives were removed from the laptops two weeks later, but the Delaware State Police High Tech Crimes Unit discovered that the files were encrypted. It took the HTCU until late December, almost three months after the search warrant was executed, to overcome the encryption challenges and access the data on all three laptops.
Once access was obtained, the information was to be given to a DOJ “filter team” that was to review privileged information and communications from the laptops and screen it from prosecutors in order to protect McGuiness’ rights. The concern was that the laptops might contain communications with Wood or with the deputy attorney general assigned to the auditor’s office.
In January, the DOJ learned that it couldn’t use the Delaware State Police forensic search tools because those tools were limited to handling interstate crimes against children.
The laptop files were delivered to the filter team in early March. Another month went by before prosecutors gave the information — more than 511,000 files — to the defense.
According to the ruling, there was no indication that the files were ever reviewed by the filter team, and nothing to suggest that prosecutors reviewed the files, as required, for potentially exculpatory information that must be given to the defense.
“The court cannot condone the failure of the state to provide these materials timely (sic) and finds that the state has no justifiable reason for waiting six months to deliver a large file of unreviewed documents to the defendant,” Carpenter wrote.
He refused to dismiss the indictment, however, noting that while prosecutors failed to use “commonsense management of potential critical documents,” there was no indication they acted in bad faith.
The judge also refused to hold prosecutors accountable for not disclosing information potentially favorable to the defense. He noted that even if they had an obligation to search for so-called “Brady material,” it appears that they lacked the technical capability to do so.
“Under these circumstances, it is difficult for the court to find a Brady violation because there was only a month delay from the time the state gained access to the material to when they delivered that material to the defense,” wrote Carpenter. He also noted that “the inability of the state to obtain access to these documents for nearly six months speaks volumes as to the technical forensic capability of state investigators.”