IN THE SUPERIOR COURT OF THE STATE OF DELAWARE State of Delaware, Plaintiff, ID No. 2110001942 v. Kathleen McGuiness, Defendant. DEFENDANT’S APPLICATION FOR SANCTIONS IN RESPONSE TO IMPROPER AND MATERIALLY PREJUDICIAL EXTRAJUDICIAL. STATEMENTS BY THE ATTORNEY GENERAL -; Pursuant to Superior Court Criminal Rule 42, the Sixth Amendnight to the United States Constitution, and Article I, § 7 of the Delaware Constitysion, ‘the Defendant hereby moves this Court for sanctions in response to certaly pubilic remarks made by the Attorney General. The remarks are improper, and they are more likely than not to have a substantial likelihood of materially prejudicing an adjudicative proceeding in this case as those terms are defined by the Delaware Lawyers’ Rules of Professional Conduct. The Defendant therefore requests such sanctions to include (1) a ban on all extrajudicial comments pertaining to this matter by the Attorney General and other employees of the Attorney General’s Office and (2) a finding of fact that certain statements made by the Attorney General as specified herein constitute a violation of the Delaware Lawyers’ MEL 377984670.Professional Conduct Rules. In support of this Motion, the Defendant avers the following: The Law 1. The Sixth Amendment to the United States Constitution and Article 1, § 7 of the Delaware Constitution guarantee that a defendant who is otherwise entitled to a trial by jury is entitled to a trial by an impartial jury. E.g., Hughes v. State, 490 A.2d 1034, 1040 (Del. 1985). “Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors, and an outcome affected by extrajudicial statements would violate that fundamental right.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991), 2. A defendant’s decision to invoke his or her constitutional rights to silence and against self-incrimination upon advice of counsel is not admissible as evidence at trial in the State’s case-in-chief. E.g., Capano v. State, 889 A.2d 968, 976 (Del. 2006); Burroughs v. State, 988 A.2d 445, 450 (Del. 2010); see also D.RE. 512 (the claim of a privilege “is not a proper subject of comment by judge or counsel” and “no inference may be drawn therefrom”). See also Sheppard v. Maxwell, 384 U.S. 333, 360, (1966) (reversing a criminal conviction because of inherently prejudicial pretrial publicity, and criticizing the prosecution for publicly disseminating the Defendant's refusal to cooperate to provide inadmissible (MEL 37738461¥.1evidence to the police, noting that (“The exclusion of such evidence in court is rendered meaningless when news media make it available to the public.”) 3. The Delaware Lawyers’ Rules of Professional Conduct (“DLRPC”) serve as an important additional means of safeguarding a criminal defendant’s constitutional right to a fair trial by jurors whose impartiality has not been compromised by improper extrajudicial statements. DLRPC 3.6(a) reads in pertinent part as follows: Rule 3.6 Trial Publicity. (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. DLRPC 3.6(d) clarifies that “[nJo lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).” 4 The Comments to DLRPC 3.6 provide additional and specific guidance to all Delaware lawyers who choose to make extrajudicial statements that they know will be disseminated by public media. Comment [5] to Rule 3.6 reads in pertinent part as follows: [5] There are, on the other hand, certain subjects which are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a 3 MEL 377554671criminal matter, or any other proceeding that could result in incarceration. These subjects relate to: ... (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement; ... (5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial... (emphasis added). 5. DLRPC 3.8 applies to all prosecutors in criminal matters. DLRPC 3.8(£) requires that a prosecutor shall “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent...making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.” 6. Rule 2-14.4 of the National Prosecution Standards (3 ed.) of the National District Attorneys Association is in accord with DLRPC 3.6 and 3.8 insofar as it warns prosecutors against any public, extrajudicial statements about the contents of statements made by accused persons during an investigation. The Facts 7. On October 10, 2021, a Grand Jury returned an indictment in the above-captioned matter. 8. Within a few hours, the public relations staff of the Attorney General’s Office sent out a media advisory to most of the major print and MEL 377384670.electronic media entities in Delaware and Philadelphia announcing that the Attomey General “will announce a major public trust indictment.” Media recipients were advised that the announcement would occur outside of the Leonard L. Williams Justice Center on October 11, 2021 at 2:30 p.m. Recipients were asked to “RSVP” to the Attomey General’s public relations staff, and were advised that “media in attendance will have the opportunity for Q & A.” On information and belief, a copy of the media advisory is available from the Attorney General’s Office. 9. The press conference described in the preceding paragraph occurred as scheduled. Photographs and videos of the event show that the Attorney General delivered her remarks to the assembled media representatives from behind a podium affixed with microphones bearing the identifying logos of media outlets from Delaware, Philadelphia, and Maryland, including Delaware Online (the website of the Wilmington News-Journal), CBS 3, 6 ABC, NBC 10, and Fox 29 {all television stations in Philadelphia), WBOC-TV (a television station in Salisbury, MD), WDEL (a radio station in Wilmington), and WDDE (a radio station in Dover). Photographs and videos depicting the aforementioned are publicly available atthe ~—-Delaware_-—- Online — website at: https:!/www.delawareonline.con/story/news/politics/2021/10/1 1/de-attorney- general-announce-major-public-trust-indictment/5914972001/ MEL 37755467110. During the course of the press conference, and after the Attorney General concluded her prepared remarks, the following exchange occurred between the Attorney General and an attendee who was presumably one of the invited reporters: Q: Has the auditor had any response to this or reaction? ‘A: (by the Attorney General): “Look, I have not spoken to the defendant and that has been deliberate. I can tell you that the division of civil rights and public trust has reached out to the Auditor on several occasions and she has declined to speak with them.” (emphasis added). 11. As of the date of this filing, a video of the press conference described in Paragraphs 9 and 10, which contains the Attorney General’s comments as specified in Paragraph 9, has been publicly available on the Delaware Online website here: https://www.delawareonline.com/videos/news/2021/10/11/delaware- state-auditor-kathy-meguiness-indicted-two-felony-charges-attorney-general- kathy-jennings/6094498001/.! 12. At least one other major media outlet, 6 ABC in Philadelphia, has publicly disseminated the Attorney General’s comment on the Defendant’s exercise of her constitutional rights to silence and against self-incrimination. See | The media advisory described in Paragraph 6 above also represented that the press conference would be “recorded and made available for media who are unable to join in person.” Given that representation, on information and belief, a copy of the video of the press conference is available from the Attorney General’s Office. 6 MEL 37755460¥ |https://6abc.com/delaware-state-auditory-kathleen-meguiness-attorney-general- kathy-jennings-del-official-charged-indicted/11116835/. ARGUM: 11. The Attorney General's comment to a reporter—at a press conference she called and her staff arranged—about the Defendant’s choice to follow the advice of counsel and exercise her constitutional rights to silence and against self- incrimination was obviously improper. Such comments clearly violate DLRCP 3.6 and 3.8. The plain text of those rules, and the comments thereto, forecloses any credible attempt to claim otherwise. 12. First, DLRPC 3.6 expressly prohibits the Attorney General and her staff from making any comment that she or they “knows or reasonably should know will be disseminated by means of a public communication” if the statement would “have a substantial likelihood of materially prejudicing an adjudicative proceeding.” In this instance, the Attorney General’s comment concerning the Defendant’s choice to follow the advice of counsel and exercise her constitutional rights to silence and against self-incrimination was (1) made at a press conference organized at and by the Attorney General’s office; and (2) made to members of the electronic and print media who the Attorney General’s staff specifically invited to the event. Clearly, the Attorney General and her staff knew, or should have known, that her comments would be “disseminated by means of public communication.” MEL 37755467v.113. Second, Comment [5](2) to DLRPC 3.6 explicitly provides that a public comment upon a criminal defendant’s invocation of his or her constitutional right to silence and against self-incrimination is “more likely than not to have a materially prejudicial effect” upon a criminal proceeding. The Attorney General made exactly such comments, thus materially prejudicing the Defendant's pending criminal proceeding and further violating DLRPC 3.6. 14. Finally, Comment [5](5) to DLRPC Rule 3.6 explicitly provides that a public comment upon evidence that a lawyer “knows or reasonably should know is likely to be inadmissible at trial” is “more likely than not to have a materially prejudicial effect” upon a criminal proceeding. Both the Delaware Supreme Court and the Delaware Rules of Evidence make it clear beyond any doubt that evidence about the Defendant’s choice to exercise her constitutional rights to silence and against self-incrimination will be inadmissible at trial. This prohibition has existed in constitutional law and the Delaware Rules of Evidence for many decades. Surely, the Attorney General must have known, or should reasonably have known, that her comment constituted a public comment about evidence that will almost certainly be inadmissible at trial. By making such comments, the Attorney General caused a materially prejudicial effect on the Defendant’s proceeding and further violated DLRPC 3.6. MEL 37755467¥.115. Undersigned counsel has been a criminal law practitioner in Delaware for more than 35 years, including 31 years as a prosecutor in the Attorney General’s Office. Undersigned counsel cannot recall a single instance where an Attorney General or Deputy Attorney General publicly commented before trial upon a criminal defendant’s refusal or failure to make a statement during the course of a criminal investigation. Nor does diligent research disclose any instances of such comments made by a Delaware prosecutor and challenged by a defendant in Delaware’s courts. That the comments at issue here appear to be the sole instance of such in recent Delaware history is strong circumstantial evidence that it has long been widely understood among Delaware’s prosecutors that such comments are improper and violate DLRPC 3.6 and 3.8. 16. This Court has the authority to enforce the DLRPC when necessary for the “fair or efficient administration of justice.” State v. Siple, 1995 WL 264669, at *3 (Del. Super. Ct. Apr. 25, 1995) (citing Matter of Estate of Waters, 647 A2d 1091, 1096 (Del. 1994) and Appeal of Infotechnology, Inc., 582 A.2d 215, 221 (Del. 1990). See also In re Hurley, 257 A.3d 1012, 1018 (Del. 2021) (upholding the Superior Court’s authority to find an attorney to be in civil contempt for his violation of a previously-imposed “gag order”). While the contemptuous conduct of counsel in Jn re Hurley occurred after the issue of a gag order, here the Attorney General's violation of DLRPC Rules 3.6 and 3.8 have already occurred before any MBI3775S467¥.1such order can even be made. This warrants the imposition of a more rigorous prohibition against extrajudicial statements to prevent any future comments by the Attorney General’s office that may further prejudice the Defendant's right to a fair trial before an unbiased jury. 17. The conduct at issue in Jn re Hurley involved the conduct of defense counsel. Here, the improper comments in violation of DLRPC 3.6 and 3.8 were made by a prosecutor, who “has the responsibility of a minister of justice...and specific obligation to see that the defendant is afforded procedural justice...” DLRPC 3.8, Comment [1]. The comments at issue here were made in derogation of that obligation. 18. The violation of that prosecutorial duty here further supports the Defendant’s application for sanctions requiring the Attorney General and her staff to be prohibited from making any additional extrajudicial comments pertaining to this matter. A lesser sanction would unduly depreciate the Attorney General's failure to meet her obligation to “see that the defendant is afforded procedural justice” by making public statements that are more likely than not to have a materially prejudicial effect upon this criminal proceeding. CONCLUSION For the reasons set herein, the Defendant hereby moves this Court for sanctions in response to the public remarks made by the Attorney General which MEI 377584679.are more likely than not to have a substantial likelihood of materially prejudicing an adjudicative proceeding. The Defendant requests such sanctions to include (1) a ban on all extrajudicial comments pertaining to this matter by the Attorney General and other employees of the Attorney General’s Office; and (2) a finding of fact that certain statements made by the Attorney General as specified herein constitute a violation of the Delaware Lawyers’ Professional Conduct Rules. Dated: October 14, 2021 McCARTER & ENGLISH, LLP /s/ Steven P. Wood Steven P. Wood (#2309) Chelsea A. Botsch (#6715) Renaissance Centre 405 North King Street, 8" Floor Wilmington, Delaware 19801 Tel: (302) 984-6300 Attorney for Defendant MEL 377854671CERTIFICATE OF SERVICE Thereby certify that on the 14% day of October, 2021, I caused to be served via email a true and correct copy of the above and foregoing document upon all counsel of record. /s/ Steven P. Wood Steven P. Wood (#2309) MEL 37755467V.1IN THE SUPERIOR COURT OF THE STATE OF DELAWARE State of Delaware, ) ) Plaintiff, ) ID No. 2110001942 ) v. ) ) Kathleen McGuiness, ) Defendant. ORDER THIS MATTER, having come before the Court by way of the Defendant’s Application for Sanctions in Response to Improper and Materially Prejudicial Statements by the Attorney General, and opposition having been filed thereto by the Attormey General, and the Court having considered the moving and non- moving papers and other competent information referenced therein, and for good cause shown, IT IS on this___ day of 2021, hereby ORDERED, that (1) no extrajudicial comments may be made pertaining to this matter by the Attorney General and other employees of the Attorney General’s Office; and (2) the statements made by the Attorney General as specified in the Defendant’s Application for Sanctions constitute a violation of the Delaware Lawyers’ Professional Conduct Rules. JUDGE MEL 377547960.