Feds Admit Breaking Law With Delay In Case Against Alleged Jan. 6 Rioter

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Federal prosecutors admitted Monday to losing track of one jailed defendant in the storming of the Capitol and conceded that the indictment against him should be dismissed, but they urged a judge to permit the charges to be refiled because of the seriousness of his alleged attack on police during the Jan. 6 riot.

In a highly unusual court filing, lawyers from the U.S. Attorney’s Office said the handling of the case against Texas resident Lucas Denney violated his rights under the Speedy Trial Act. Prosecutors said errors and oversights led to Denney sitting in a Virginia jail for weeks last month as he awaited his first court appearance in Washington, D.C.

“There was nothing intentional or nefarious about the delay. It was an isolated incident, unlikely to happen again, and the time frame —while undoubtedly regrettable — is nevertheless not significantly egregious to warrant dismissal with prejudice,” Assistant U.S. Attorney Jennifer Rozzoni wrote.

But during a chaotic afternoon hearing held by videoconference before U.S. District Judge Randy Moss, defense attorneys for Denney dropped their earlier bid to dismiss the case and instead sought to have him plead guilty before prosecutors could add more charges to a single-count indictment a grand jury returned last week.

The move seemed to take prosecutors and the judge by surprise, since defendants almost never plead guilty at an arraignment.

“This, obviously, is nothing I was prepared to decide today,” said Moss, an appointee of Barack Obama.

An attorney for Denney, William Shipley, said he hoped the quick guilty plea would preclude the government from obtaining a grand jury indictment of his client on charges beyond the single charge of assault on a police officer with a dangerous weapon.

“I don’t put it past them to run to the grand jury again to try to once again escape the trap that they’ve built for themselves,” Shipley said.

It’s not totally clear that the plea would foreclose additional charges, but Moss said there could be an argument that adding more charges later over the same conduct violated Denney’s protections against double jeopardy.

Shipley pressed to proceed with the guilty plea at Monday’s hearing or, failing that, on Tuesday, but Moss expressed concerns about rushing the process. The charge Denney faces can carry a term of up to 20 years in prison. The judge also cautioned that, under federal sentencing rules, so-called “uncharged conduct” can be used to lengthen a sentence.

“I have real concerns about Mr. Denney’s rights,” the judge warned. “Your client could end up with a very lengthy sentence in a sort of rush to cut the government off.”

Shipley asked Moss to order the government not to return an indictment until Denney’s guilty plea can be taken. The judge declined to do that, but set a hearing for Thursday afternoon, when Denney can seek to offer a guilty plea.

Denney was arrested in Mansfield, Texas, on Dec. 13 on a criminal complaint charging that he grappled with police at the Capitol, swung a metal pole at an officer and threw projectiles at a line of police. He appeared in federal court in Del Rio, Texas, on Dec. 14 and Dec. 17, where a magistrate judge ordered that he remain in custody and be transferred to Washington to face charges.

Denney then seemed to disappear from the court system for a couple of months. Records show he arrived Jan. 31 at a jail in Warsaw, Va., used to hold some federal court suspects. Denney’s attorney, John Pierce, was aware by Feb. 4 of his client’s arrival in Virginia, emails show.

Scheduling of an initial court appearance in Washington for Denney was discussed among the lawyers involved and court personnel, but seems to have gone unresolved until Feb. 25, when he was puzzlingly given a court date two weeks later although the court’s duty magistrate judge typically sees Jan. 6 defendants nearly every weekday.

Denney’s lawyers filed an emergency motion for his release on March 2, citing the protracted delays in his appearance and the failure of the government to obtain an indictment in his case within 30 days of his initial court appearance in Texas.

During a hearing last week, a federal magistrate judge in Washington scolded prosecutors over their handling of the case. U.S. Magistrate Judge Zia Faruqui said the Justice Department seemed overwhelmed by the work required to pursue criminal cases against the nearly 800 defendants they have charged in the Capitol riot.

“The government has chosen to charge the largest case ever,” said Faruqui, who noted he was formerly a prosecutor in the same U.S. Attorney’s Office leading the investigation. “If they do not have the resources to do it, they ought not do that. … It feels like the government has bitten off more than it can chew here.”

Faruqui also apologized profusely to Denney.

“You have been lost for months,” the judge said. “There’s no excuse to treat a human being like that. … There is no circumstance under which any person should be forgotten.”

Faruqui ruled that the government had violated Denney’s rights under the 1974 law designed to expedite criminal proceedings in federal court. However, the judge said he could not release Denney because — on the same day as his first court appearance in Washington last week — prosecutors obtained a single-count grand jury indictment charging him with assaulting a police officer with a metal pole amidst the Jan. 6 riot.

“To be sure, the government failed to comply with the Speedy Trial Act in this case. But there is no evidence of bad faith, a pattern of neglect, or something more than an isolated incident that resulted from a number of unfortunate factors,” wrote Rozzoni, who is based in New Mexico and is one of dozens of prosecutors across the country helping D.C.-based prosecutors handle the slew of Jan. 6 cases.

Moss agreed Monday that the case had been mishandled by not getting Denney in front of a judge in Washington quicker. “Things did not work the way they should have with respect to Mr. Denney, and I understand that concern. … He’s been incarcerated longer than he should have,” the judge said.

Shipley also took on the substance of the case at Monday’s hearing, contending that his client never swung a metal pole during the riot. “It’s a piece of plastic PVC … not a metal pipe, not a steel pipe, not an iron pipe, not a lead pipe,” the defense attorney said. “The facts here are not that extreme.”

Most of the nearly 800 defendants have been released within days of their arrests. However, several dozen have been ordered detained pending trial, often in cases where they are accused of violent assaults on police officers. A handful of people are being detained on accusations of conspiring to organize the storming of the Capitol in a bid to block or delay Congress from certifying President Joe Biden’s win in the 2020 presidential election.

While Faruqui said last week that Denney’s case was an aberration and prosecutors termed it “an isolated incident,” early last year, there were numerous unexplained delays in Jan. 6 defendants making their first court appearances. In one case, Faruqui himself complained forcefully about the three weeks it appeared to take for one detained defendant to be transferred from a Virginia jail to D.C. — a roughly two-hour drive.

“The buck has got to stop somewhere and it stops with the judges because that’s our job to keep the system moving….It’s just not acceptable,” the judge said last March at a hearing for Capitol riot defendant Jonathan Mellis. “Whatever little solace it is, we are going to figure out what happened and ensure it doesn’t happen to somebody else.”