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Former Delaware Auditor Gets One Conviction Tossed and Another Upheld on Appeal


Former Delaware auditor Kathy McGuiness recently had one conviction upheld and another vacated by the state Supreme Court. The court overturned a 2022 conviction for Official Misconduct but upheld the conviction for conflict of interest. The Attorney General has yet to decide whether or not they will retry the case on one misdemeanor count of Official Misconduct. McGuiness resigned her office in October 2022 after she was convicted. She was sentenced to probation and a fine. She is the first elected official ever convicted of a crime while in office.

McGuiness’s defense had argued that the trial led to convictions that were “unconstitutional and unfair.” The justices, however, ruled that McGuiness received a fair trial. McGuiness had hoped to have both of her convictions tossed. However, the court only found cause to vacate one of the crimes for which she was charged.

McGuiness raised numerous issues on appeal. She claimed that the state failed to provide sufficient evidence of the charged crimes. She also argued the court violated her due process rights by suppressing exculpatory evidence from the official record. The court rejected those arguments because they “distort the trial court’s holdings or misapply the law.”

On the other hand, the court concluded that the Official Misconduct conviction “must be reversed.” The court ruled that jurors should not have been presented with evidence that McGuiness illegally structured a contract with a campaign consultant to avoid a state procurement policy. The court ruled that while McGuiness’s actions violated state policy, they did not rise to the level of an actual crime.

Understanding Official Misconduct charges 

According to 11 DE Code § 1211, a public servant is guilty of official misconduct when by intending to obtain a personal benefit or cause harm to another person, they:

  1. Commit an act constituting an unauthorized exercise of official functions, knowing that the act is unauthorized
  2. Refrains from performing a duty which is imposed by law or is clearly inherent in the nature of the office
  3. Perform official functions in a way intended to benefit the public servant’s own property or financial interests under circumstances in which the public servant’s actions would not have been reasonably justified in consideration of the factors which ought to have been taken into account in performing official functions
  4. Perform official functions in a way intended to practice discrimination on the basis of race, creed, color, sex, age, handicapped status or national origin

In this case, McGuiness was accused of performing official functions in a way intended to benefit her own property or financial interests. However, the court ruled that her conduct did not explicitly violate the law, only state policy. As such, she was not guilty of a specific crime. The court thus vacated the conviction.

Talk to a Wilmington, DE Criminal Appeals Attorney Today 

Wilmington criminal defense lawyer Michael W. Modica represents the interests of those convicted of various crimes during their criminal appeals. We can help you file an appeal and have your conviction overturned. Call our office today to schedule an appointment, and learn more about how we can help.



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