The Federal Speedy Trial Act, which requires that someone be indicted within 30 days after their arrest, has not allowed a Jan 6 defendant to be indicted. The Defendant, Lucas Denney, had a hearing Monday afternoon on his counsel’s motions filed last week seeking his release and dismissal of the then-pending charges based on a criminal Complaint.
Over the weekend, the magistrate judge in DC ordered Denney to be personally brought before him for Monday’s hearing and for the Government to explain the delay in bringing Denney before the court after he was transported by the U.S. Marshal’s service from Texas, arriving in DC over five weeks ago, on January 31, 2022.
Also, on Sunday, the Chief Judge of the DC District Court, who oversees the magistrate docket, entered a separate order directing the magistrate to produce a report and make a recommendation to her about how to resolve Denney’s emergency motion that his charges must be dismissed under the Speedy Trial Act because he was not indicted within 30 days of his arrest as required by 18 USC 3162. The report was not due to be submitted by the deadline, even though it was an emergency motion.
The magistrate judge commenced the hearing by apologizing to Denney that he had been “lost” by the system. He expressed frustration and outrage that the Department of Justice did not properly notify the court of Denney’s arrival in DC or properly docket the case’s next procedural step, thereby causing Denney to sit in a jail cell for weeks before being seen by a judge in DC. He acknowledged that any hour spent in unlawful detention was a violation of our Constitution principles.
The judge confirmed, as I reported Monday, that the next step in Denney’s case was not a second “Initial Appearance” – as preposterously argued by the prosecutors in their briefing papers – but rather should have been a status hearing scheduled promptly after Denney’s arrival in DC for a judge to determine the next steps in his case.
The judge also expressed outrage at DOJ for letting Denney’s case “slip through the cracks,” and said that if the DOJ did not have the manpower to handle the volume of January 6 prosecutions that it had undertaken then the consequences of that should fall on DOJ, not the defendants. He sharply rebuked the prosecutor’s office for representing that the January 6 cases were eminently significant in terms of protecting the Constitution and then violating a defendant’s Constitutional rights in the process of prosecuting him.
Denney was not allowed to be released by the judge because Denney hadn’t been granted a preliminary hearing in Texas. While the Judge agreed that it was required by Rules of Court, Denney refused to be granted any relief. The DOJ had also obtained a grand jury conviction against Denney Monday morning. This occurred just hours before Denney appeared at the hearing. Denney was informed by the judge that because of the indictment, a Preliminary Hearing would not be possible. Denney was clearly in violation of his rights, and he expressed disappointment that Denney could not be provided any relief under the law.
Concerning Denney’s motion for dismissal because he had not been charged within 30 days of his arrest, the magistrate decided that Denney could not be heard at that hearing. The Chief Judge had asked him to prepare a report and provide a recommendation. This would allow her to decide whether Denney should face the Speedy Trial Act offense. He, therefore, felt he could not release Denney despite the obvious fact that the indictment obtained Monday morning was returned months after Denney was arrested and not filed within 30 days of his arrest – as the Speedy Trial Act clearly requires.
The magistrate judge directed the parties to fully brief the Speedy Trial Act issue for him to begin the “report and recommendation” process. He asked them specifically to consider whether any standing emergency orders that were issued by Chief Judge in response to the coronavirus epidemic would have an impact on the Speedy Trial Act analysis.
The Act allows time to be “excluded,” meaning not counted against the 30-day deadline, for certain reasons, one of which is that the “ends of justice” are served because the reason for the delay outweighs the public and the defendant’s interests in a speedy trial. This exclusion was explicitly invoked by Chief Judge in several standing orders that he issued from March 2020 through the present regarding the pandemic. These orders specifically excluded time for the 30 day indictment deadline as well as the 70-day trial deadline pursuant to the Speedy Trial Act.
While pointing to the COVID orders currently in force and their exclusion from trials under the Speedy Trial Act, the magistrate suggested that prosecutors might want to draw on this. He advised them not to just refer to it like DOJ had done with another case. He urged them to provide analysis on how the standing order applied to Denney’s case. They would be using the standing order. Relief was evident when she spoke up at Denney’s suggestion.
The magistrate’s suggestion to rely on the standing COVID orders is not going to save the indictment, however. The current COVID order does not allow for time to be taken to trial under the Speedy Trial Act, but it does. It is notApply to the 30-day deadline to file an indictment following arrest. Although the Grand Jury had been established at the start of the pandemic, they did not have to comply with the deadline for filing indictments within the 30 days. These orders were only valid from March 17th 2020 through July 15th 2020. The Grand Juries reopened after this time. Since July 2020 Grand Jury indictments have not been subject to the standing COVID orders unless the Government specifically petitions the court to exclude time on that basis for a specific case, which they of course did not do in Denney’s case.
The circumstances were so unusual that the Government sought a week to present the Speedy Trial Act topic. Even though they had just complained about the inhumane treatment of being unlawfully held for an hour, the magistrate granted the request. (The Government had to respond to Denney’s Saturday defense motion within two weeks according to normal court procedures. Denney’s defense lawyer said he would take only three days to respond to the Government’s pleading. A second hearing was scheduled for March 22nd, 2022 by the magistrate.
No matter how much research is done by the Government, the end result of all briefing in this case is that it is clear that Monday’s indictment must be dropped under the Speedy Trial Act. This act’s language is obligatory. It says that the indictment must be brought within 30 days of arrest; if it isn’t, the indictment must be dismissed. The cases where the defense delayed until the trial began to address the question are the only ones that will be found conclusively. The Government’s only arguments at this juncture in Denney’s case will have to focus on justifying the exclusion of time to try to whittle it down and shoehorn Monday’s indictment into a 30-day window. As Monday was the 84th day after Denney’s arrest, they are simply not going to be able to do that. Denney’s detention is no more legal today than it was the day before the indictment was returned.
Thus, inevitably, the Government and the court are going to have to face up to the reality that Denney has been detained illegally since the second half of January and that Monday’s indictment must be dismissed. This paper is worthless. And, indeed, it is hard to believe that the Government does not already know that and that yesterday’s rush to the Grand Jury to get the indictment was merely a cynical ploy to provide some cover for their outrageous violations of Denney’s rights and forestall his release.
Denney was also detained for a legal defect and is destined for failure by the Court for delaying the judgment on Denney’s motion for dismissal for briefing, and report writing. The court did not see the need to act on this possibility.
Denney’s current indictment must be dropped. However, Denney will still face criminal charges. Denney’s current indictment must be dismissed. If that happens, no additional charges can be filed. Or, the Court may decide that the dismissal was made with prejudice. In this case, the government could obtain another indictment for the same offense(s). However, the immediate question is whether Denney’s current charges must be dropped. This would allow him to be released pending the possibility of new charges being brought by the government.
At the close of the hearing, the judge commended the defense counsel as a “credit to the court” for bringing the issue of Mr. Denney’s detention situation to the court’s attention. This praise used to be something that an attorney could take pride in. Help the court do justice Should BeIt is an enviable reason to feel proud.
These commendations, as well as the expression of regret and disappointment by judges, are completely meaningless when the court system is responding to the clear and easily ascertained allegations that the defendant was unlawfully detained.
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