As I reported Monday, a January 6 Defendant arrested December 13, 2021, had not yet been indicted even though the Federal Speedy Trial Act requires the Government to indict someone within 30 days of the date of their arrest. 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. No deadline was set for the report, however, despite the emergency nature of the 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. The judge acknowledged that even an hour of unlawful detention was an affront to our constitutional 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.

However, the judge rejected the defense motion that Denney should be released because he had not been afforded a Preliminary Hearing in Texas, where he was arrested. Although the judge agreed this was required by the Rules of Court, he decided that he could not provide Denney any relief on that basis because, among other technical reasons, the DOJ had obtained a grand jury indictment against Denney on one count Monday morning, just hours before the hearing took place. The judge explained to Denney that the indictment made the lack of a Preliminary Hearing a legal irrelevancy. He did express frustration that the law did not allow him to provide any relief to Denney for what was a clear violation of his rights.

As for the motion seeking dismissal of the case because Denney had not been indicted within 30 days, the magistrate concluded that he could not decide that motion at the hearing because the Chief Judge had ordered him to write a report and give her a recommendation so that she can decide whether the charges should be dismissed for the Speedy Trial Act violation. 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 specifically asked them to address whether the standing emergency orders put in place by the Chief Judge due to the coronavirus pandemic would affect the analysis under the Speedy Trial Act.

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. That exclusion was specifically invoked by the Chief Judge in a series of standing orders from March 2020 to the present concerning the pandemic to exclude time for both the 30-day indictment deadline and the 70-day trial deadline under the Speedy Trial Act.

The magistrate pointed to the currently applicable COVID order and its exclusion under the Speedy Trial Act for trials and suggested that the prosecutors may want to rely on that, although he advised them to do more than just cite it as DOJ had done in another case. He urged them to provide analysis on how the standing order applied to Denney’s case. The prosecutor confirmed that they would be relying on the standing order, relief evident in her voice at the suggestion.

The magistrate’s suggestion to rely on the standing COVID orders is not going to save the indictment, however. While the current COVID order excludes time under the Speedy Trial Act for the 70-day deadline to take a case to trial after indictment, it does not apply to the 30-day deadline for filing an indictment after arrest. Previous orders at the beginning of the pandemic did apply to the Grand Jury and the 30-day deadline, but those orders only excluded time from March 17, 2020, to July 15, 2020, and after that point, the Grand Juries began functioning again. 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.

Incredibly under the circumstances, the Government asked for a week to brief the Speedy Trial Act issue, and despite having just railed about how even spending an hour unlawfully detained is intolerable, the magistrate agreed to that request. (The ordinary rules of the court would have given the Government two weeks to respond to the defense motion filed on Saturday.) Denney’s defense lawyer said he would take only three days to respond to the Government’s pleading. The magistrate then set another hearing for March 22, 2022.

No matter what research the Government undertakes, when all the briefing is said and done in this case there is simply no escaping the conclusion that the indictment returned Monday MUST be dismissed under the Speedy Trial Act. The language of the act is mandatory. It says that the indictment must be brought within 30 days of arrest; if it isn’t, the indictment must be dismissed. The only cases concluding otherwise are ones where the defense waited until the trial started to raise the issue. 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. It is not worth the paper it is written on. 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.

Further, by delaying the decision on the motion to dismiss for briefing and report writing instead of pushing for an immediate resolution of this not exactly complicated question, the Court has extended the period of time that Denney remains detained on a charge that is legally defective and destined to fail. That that prospect did not produce urgency by the court is problematic.

While the current indictment against Denney must ultimately be dismissed, that does not mean that he will not face charges. The Court will have to decide whether the dismissal is with prejudice, in which event no further charges could be brought, or without prejudice, in which case the government can obtain another indictment on the same charge(s). The immediate issue, however, is whether the current charges against Denney must be dismissed, which would at least result in his release pending any new charges the government may be permitted to bring.

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. In times past, such praise would be a reason for pride for an attorney. To assist the court in doing justice should be a justifiable cause for pride.

Such commendations and the expression of apology and frustration by judges are totally empty, however, when no actual urgency is brought to bear by the judicial system in response to clear, readily ascertainable allegations that the defendant is being unlawfully detained.