State v. McGuiness

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
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)
)
v. ) ID No. 2110001942
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KATHLEEN MCGUINESS )
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Defendants. )
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Submitted: May 4, 2022
Decided: May 18, 2022
Defendant’s Motion to Dismiss Indictment or Alternatively Sanction the State
for Discovery Violations – GRANTED in part and DENIED in part
MEMORANDUM OPINION
Mark A. Denney, Jr., Esquire, Department of Justice, 820 North French Street, 7 th
Floor, Wilmington, Delaware 19801. Attorney for State of Delaware.
Steven P. Wood, Esquire and Chelsea A. Botsch, Esquire, McCarter & English,
LLP, Renaissance Centre, 405 North King Street, 8th Floor, Wilmington, Delaware
19801. Attorneys for Defendant.
CARPENTER, J.
Before the Court is Defendant Kathleen McGuiness’s (“Defendant” or
“McGuiness”) Motion to Dismiss the Indictment or Alternatively Sanction the State
for Discovery Violations pursuant to Delaware Superior Court Rules of Criminal
Procedure 7(c), 16(d)(2), and 48(b).1 For the reasons set forth in this Opinion,
Defendant’s Motion is GRANTED in part and DENIED in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 29, 2021, personnel from the Delaware Department of Justice
(“DOJ”) executed a search warrant at the Defendant’s office in Dover, Delaware.2
Three laptops, five USB thumb drives, and one storage disk were seized during the
execution of the search warrant.3 One laptop belonged to the Defendant, and another
belonged to the Defendant’s daughter.4
After the execution of that search warrant, the evidence collected was maintained
by the Delaware State Police High Tech Crimes Unit (“HTCU”). 5 On October 12
and 13, 2021, several days after the Defendant was indicted by the Grand Jury, hard
drives were removed from the seized laptops and, at that time, it was discovered that
1
Def.’s Mot. to Dismiss Indict. or Alt. Sanction the State for Discovery Violations, D.I. 73, p. 1
(Apr. 22, 2022)(hereinafter “Def.’s Mot.”).
2
Id. at p. 2.
3
Id. at ¶1.
4
Id.
5
State’s Resp. in Opp’n to the Def.’s Mot. to Dismiss Indict. for Discovery Violations, D.I. 81, ¶2
(May 2, 2022)(hereinafter “State’s Resp.”).
2
the files on the laptops were encrypted.6 In late October 2021, HTCU was able to
access the data on one of the laptops but not the other devices. 7 It was not until
December 21, 2021, nearly three months after the search warrant had been executed,
that the data contained in all three laptops was accessed and the encryption
challenges were overcome.8
Once access had been obtained, information from the laptops was to be provided
to a Filter Team at the DOJ before it was eventually turned over to the Prosecution
Team.9 The Filter Team process was approved by the Court on October 8, 2021.10
The Filter Team’s purpose was to review privileged information and
communications from the seized devices and screen the Prosecution Team from that
information to protect the Defendant’s rights. More specifically, there was a concern
that the laptops contained privileged and confidential information and
communications between the Defendant and the DOJ attorney assigned to the
6
State’s Resp. Ex. B at p. 1 (State’s Timeline of Discovery Production).
7
State’s Resp. Ex. B, at p. 1.
8
Id. at 1-2.
9
State’s Resp. at ¶6; See Del. Dept. of Justice Policy # 6.17 (Use of Filter Teams)(April 30, 2019);
The Filter Team concept had been approved by another judge of the Superior Court, with the
process appearing to call for the Filter Team to review the documents, and if potential privileged
documents were discovered, they could be provided to the Court for an ex parte review and a
decision whether they should be disclosed.
10
State’s Resp. at ¶1.
3
Auditor’s office as well as communications with the Defendant’s present criminal
counsel.11
Sometime in January of 2022, the DOJ discovered that they would be unable to
utilize the Delaware State Police’s forensic search tools because those tools were
limited to handling interstate crimes against children.12 As a result, in early February
of 2022, the DOJ met with Parcels, a commercial discovery vendor, to determine if
they could aid in creating a protocol to search the files on the three laptops.13 It was
not until a month later in early March of 2022 that the files from these laptops were
transferred to a thumb drive and delivered to the Filter Team. 14 More than six
months after execution of the search warrant, on April 6, 2022, the State provided to
the Defendant the information contained on these devices, which consisted of
511,266 files.15 In addition, the State restored the hard drive on the Defendant’s work
computer and returned it to her on April 22, 2022.
Now, the Defendant moves to dismiss the indictment or sanction the State for the
late production of Rule 16 discovery and for the failure of the State to meet its Brady
obligations.16 The State responded on May 2, 2022, opposing Defendant’s Motion
11
Id.
12
State’s Resp. Ex. B. at 1-2.
13
Id. at 2.
14
Id.
15
Def.’s Mot. at ¶14.
16
Id. at p. 19.
4
and provided a timeline detailing the difficulties in obtaining access to the
information on the laptops that were seized. 17 Defendant filed a reply to the State’s
response on May 4, 2022.18 The trial of this matter is set to begin on May 31, 2022.
II. DISCUSSION
To start, there is nothing in the State’s response to Defendant’s Motion to suggest
that the Filter Team ever reviewed the documents on the laptops seized from the
Defendant or performed any filtering process at the time they were returned to the
Defendant. It appears that the DOJ, recognizing that this information was potentially
discoverable, and trial was upcoming, simply provided the electronic file to the
defense without any review of their discovery or Brady obligations.
It is also difficult to determine from the State’s response what digital forensic
files retrieved by Parcels have been shared with the Prosecution Team and, more
importantly, whether the State intends to utilize any of the information from the
laptops at trial. For the purposes of the present Motion, however, the Court will
assume there are some documents the State intends to utilize in its case in chief. It
is in this shadow of events that the Motion to Dismiss has been filed.
17
State’s Resp. at p. 8, Ex. B.
18
Def.’s Reply to the State’s Resp. in Opp’n to Def.’s Mot. to Dismiss Indict. or Alternatively
Sanction the State for Disc. Violations, D.I. 82, p. 14 (May 4, 2022)(hereinafter “Def.’s Reply”).
5
A. Rule 16 Discovery Violation
Defendant contends that the State’s untimely disclosure of voluminous
material in April of 2022 violates Rule 16.19 Conversely, the State argues that it has
not violated Rule 16 because the Defendant has had continuous access to certain
materials, the number of documents produced is not voluminous, the amount of files
is misleading, the discovery was produced in a searchable, indexed database, and,
finally, the materials were produced fifty days before trial.20
Rule 16(a)(1)(C) requires the State to permit the defendant to examine “books,
papers, documents, photographs, tangible objects, buildings or places,” provided
that they “are within the possession, custody or control of the [S]tate” and are either
(1) “material to the preparation of the defense,” (2) “intended for use by the [S]tate
as evidence in chief at the trial,” or (3) “were obtained from or belong to the
defendant.”21 This rule imposes an obligation to look for discoverable evidence and
a continuing responsibility to disclose the existence of such evidence.22 The State
has a duty to inform itself of available discoverable evidence and cannot evade its
duties through ignorance.23 Moreover, Rule 16(d)(3)(B) requires the State to
19
Def.’s Mot. at ¶26.
20
State’s Resp. at ¶¶3-6.
21
Del. Super. Crim. R.16(a)(1)(C).
22
Patterson v. State, 2022 WL 1310318, at *4 (Del. May 3, 2022).
23
Valentin v. State, 74 A.3d 645, 651 (Del. Aug. 26, 2013).
6
respond to a discovery request served upon it within twenty days after service of the
request unless some other time is ordered by the Court.24
On November 30, 2021, the Defendant served her initial discovery request on the
State.25 The Court established a motion deadline of January 31, 2022, pertaining to
discovery, believing this would provide the parties with sufficient time to provide
discoverable materials, have them reviewed by counsel and if appropriate, file
motions.26 Based on the comments of counsel, it appears that substantial discovery
has been provided by the State and there has been a cooperative effort by counsel to
resolve discovery disputes or requests without involving the Court.
Even the Defendant’s Motion reflects there were nearly 19,000 documents and
51 audio files of witness interviews provided in earlier discovery.27 All of this
discovery was provided by the end of March 2022 in sufficient time to be reviewed
and considered by the defense.28 Accordingly, it appears the Defendant has received
the documents the State intends to utilize at trial and has sufficient information to
prepare her defense. And, if the Defendant had requested, which she has not, more
24
Del. Super. Crim. R. 16(d)(3)(B).
25
Def.’s Mot. at ¶4.
26
Id. at ¶6.
27
Id. at ¶¶10-11.
28
Id.
7
time to review the files and documents provided in this recent discovery, certainly
the Court would have favorably entertained that request.
That said, the Court 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. At 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. This conduct prevented defense counsel from timely
filing discovery motions to meet the deadline established by the Court and occurred
without any reasonable explanation other than an overworked HTCU and encryption
hurdles created by State’s Department of Technology and Information (“DTI”).
A trial judge has broad discretion to fashion an appropriate sanction for a
discovery violation committed by the State.29 More specifically, Rule 16(d)(2)
provides that:
If at any time during the course of the proceedings it is brought to the attention
of the court that a party had failed to comply with this rule, the court may order
such party to permit the discovery or inspection, grant a continuance, or prohibit
the party from introducing evidence not disclosed, or it may enter such other
order as it deems just under the circumstances.30
29
Oliver v. State, 60 A.3d 1093, 1097 (Del. Feb. 4, 2013).
30
Del. Super. Crim. R. 16(d)(2).
8
When considering the sanction to be imposed in the event of a discovery violation
by the State, trial courts are to “weigh all relevant factors, such as the reason for the
State’s delay and the extent of prejudice to the defendant.”31
While the State justification reflects their failure to use a commonsense
management of potential critical documents, 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.
However, this does not mean the Court can simply overlook what has occurred
since these laptops were seized in September of 2021. As counsel is aware, the trial
of this matter needs to promptly occur to resolve whether the Defendant can continue
to serve as the State’s Auditor and, whether she can run for reelection this November.
As such, attention needs to be directed towards trial and not discovery matters that
should have been resolved months ago.
Therefore, the Court believes that a fair and appropriate sanction to impose is that
any material from the three laptops seized during the search of the Defendant’s office
that was produced after March 31, 2022, is excluded from the State’s case in chief.
If documents from the laptops are used by the Defendant in her case, the Court will
31
Brown v. State, 897 A.2d 748, 752 (Del. 2006).
9
consider to what extent the State may use the excluded documents in rebuttal during
trial.
B. Brady Violation
Defendant also alleges in her Motion that the State’s belated production of
discovery violates the State’s Brady obligations.32 Brady “is not a discovery rule,
but a rule of fairness and minimum prosecutorial obligation.”33 A Brady violation
occurs where there is a “suppression by the prosecution of evidence favorable to an
accused…[that] violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.”34 In
order for the State to discharge its responsibility under Brady, the prosecutor must
disclose all relevant information obtained by the police or others in the prosecutor’s
office to the defense.35 That entails a duty on the part of the individual prosecutor
“to learn of any favorable evidence known to others acting on the government’s
behalf in the case, including the police.”36
“[T]he nondisclosure must do more than impede the defendant’s ability to
prepare for trial; it must adversely affect the ability to reach a just conclusion, to the
32
Def.’s Mot. at ¶27.
33
U.S. v. Beasley, 576 F.2d 626, 630 (5th Cir. 1978)(citing U.S. v. Agurs, 427 U.S. 97, 107 (1976)).
34
Wright v. State, 91 A.3d 972, 987 (Del. May 19, 2014)(quoting Brady v. Maryland, 373 U.S.
83, 87 (1963)).
35
Wright, 91 A.3d at 987.
36
Id. (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)).
10
prejudice of the defendant.”37 The Third Circuit has held that there is “[n]o denial
of due process…if Brady material is disclosed to [the defendant] in time for its
effective use at trial.”38 And, for impeachment purposes, “the Third Circuit has held
that a defendant’s ‘right to a fair trial will be fully protected if disclosure is made the
day that the witness testifies.’”39
“As a general rule, the [State] is under no duty to direct a defendant to
exculpatory evidence within a larger mass of disclosed evidence,”40 and when the
State produces voluminous discovery, the risk of exculpatory material being
suppressed is reduced.41 “Brady and its progeny permit the government to make
information within its control available for inspection by the defense, and impose no
additional duty on the prosecution team members to ferret out any potential defense-
favorable information from materials that are so disclosed.”42 Additionally, “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.”43
37
U.S. v. John, 391 F. Supp. 3d 458, 463 (E.D. Pa. Aug. 1, 2019)(quoting U.S. v. Starusko, 729
F.2d 256, 262 (3d Cir. 1984)).
38
Id. at 464 (citing U.S. v. Higgs, 713 F.2d 39, 44 (3d. Cir. 1983)).
39
Id.40
U.S. v. Warshak, 631 F.3d 266, 297 (6th Cir. Dec. 14, 2010)(quoting U.S. v. Skilling, 554 F.3d
529 (5th Cir. 2009), vacated in part on other grounds, 561 U.S. 358 (2010)).
41
U.S. v. Meek, 2021 WL 1049773, at *5 (S.D. Ind. Mar. 19, 2021).
42
U.S. v. Pelullo, 399 F.3d 197, 212 (3d. Cir. Feb. 25, 2005).
43
Id. at 202.
11
It is unfortunate that this is an issue at this point in the litigation. The State
could have easily resolved this matter by simply having HTCU mirror the hard
drives of the laptops and return them to the Defendant. This would have provided
the State access to the information on the laptops without jeopardizing their
investigation and, even the defense agrees, that if the Defendant had timely access
to the same documents, the Brady obligation of the State is minimized.
From the Court’s perspective, it is reasonable to believe the documents on the
Defendant’s daughter’s laptop as well as those of the Defendant’s personal work
laptop may have relevant and potentially critical documents to both litigants. 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. But in
an unusual twist of fate, the lack of technical access plays in the State’s favor as to
their Brady obligation.
The State’s timeline is undisputed when it asserts that the State was attempting
to access the three laptops from September 29, 2021, to early March of 2022. So
even if the State had an obligation, as argued by the defense, to search the files for
Brady material, it appears the State did not have 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. The Court reminds the
12
State, however, that since it now appears both the Filter Team and the Prosecution
Team have access to these documents, their Brady obligations continue.
The Court also believes it is important to put this case into some perspective.
This is not a complex financial crime that was executed over multiple years with
extensive financial documents to review and analyze, nor do the parties need
hundreds of search terms to find and obtain relevant documents. In fact, the case is
rather simplistic in its allegations which makes searching the documents more
manageable and reasonably attainable before trial. It is also important to note, the
files in dispute here are from the Defendant’s and her daughter’s own laptops to
which they should reasonably have some idea as to what is contained therein.
Moreover, in providing the files to the defense, the State has done so in a
functional and searchable format which the Defendant has already utilized to support
her Motion. There is also no indication that the State supplemented this production
with irrelevant documents or made access to them unnecessarily burdensome. If the
defense wants additional time to search and review the documents, the Court is
willing to consider that request, but of course, this will cause a delay in the trial date.
Finally, it appears that some of the discovery contains information belonging to
the Defendant, of which she allegedly has had continuous access to, including her
State of Delaware email and State of Delaware OAOA network. The Court is
13
satisfied that the Defendant can search and use the produced information to aid her
defense effectively, and the parameters set forth by the Court earlier in this opinion
are sufficient to ensure a fair and just trial and prevent any potential prejudice to the
Defendant. As a result, the Court finds no additional sanctions are warranted to the
extent Brady material was not timely produced.
III. CONCLUSION
For the foregoing reasons, the Defendant’s Motion to Dismiss is GRANTED in
part and DENIED in part.
IT IS SO ORDERED.
/s/ William C. Carpenter, Jr.
Judge William C. Carpenter, Jr.
14