Thread by @McAdooGordon

Update on Jan6 Defendant Being Held Illegally. 3/5/22

@shipwreckedcrew filed another motion:
"DEFENDANT LUCAS DENNEY’S EMERGENCY MOTION TO DISMISS AND FOR IMMEDIATE RELEASE FROM CUSTODY" asserting a violation of the statutory requirement to indict in 30 days that I explained./1

He lays out the statutes, 18 USC 1361 & 1362, and applies them to Denney's facts: he was arrested on Dec 13, 2021 & is still not indicted yet as of today, March 5, 2022 - 82 days later. So case MUST be dismissed.

Link to filing here: drive.google.com/file/d/1b4tyRV…

/2

Before folks say, I agree his math on the 30 days (or 40 if 10 days are excluded for "reasonable" time for transport from TX to DC) is wrong. Looks like he went from the date of the detention hearing instead of arrest. He filed an errata to fix it. Link
drive.google.com/file/d/128tE3F… /3

Ship asks to postpone figuring out whether the case is going to be dismissed with or w/out prejudice in favor of releasing Denney right now & dealing with the legal niceties later. Unusual approach, but it's also unusual to not get indicted w/in the statutory requirement./4

"Mr. Denney urges this Court to Order the immediate dismissal of this matter, and his release from custody FORTHWITH.
Dismissal is mandatory. Whether that dismissal is to be entered with or without prejudice is a matter that can be reserved for another day." /5

"The matter of Mr. Lucas’s liberty cannot and should not wait for another day."

100% correct. Being detained illegally is anathema to our American principles.

/6

"The Government is in violation of § 3161(b). The remedy is not a matter of discretion and there is no “cure” the Government can seek to apply. The complaint must be dismissed.
See, United States v. Hinch, 308 F.Supp.2nd,599, 602 (D.Md. 2004)."

/7

Basically, that's legal lingo for "They got nothing to say."

Nice conclusion:

"Each day Mr. Denney remains in custodial detention is an additional day that his liberty rights are denied without due process in violation his rights under The Fifth Amendment. . . ."

/8

"Mr. Denney should not be made sit in a jail cell even a single day longer while the Government tries to explain away its failure to comply with the law."

Pleading is short, sweet, & to the point: Denney MUST be released & the case dismissed.

/9

Ship filed this as an emergency motion. Not sure what the court will do, if anything, between now & Monday to be honest tho. In theory a judge is available at all times. Still hard to get heard as a practical matter on weekends. An illegal detention certainly warrants the ask./10

The magistrate who's already hearing the case on Monday will have gotten the pleading too, however, & could order an immediate phone hearing perhaps. I once had a judge issue an order for the parties to draft & file a pleading by a 4 hour deadline on a Sunday during a trial. /11

Making the absence-of-an-indictment argument definitely turns up the heat, & as I told you guys on Thursday & Ship tells the court in this pleading, there is no way for the govt to do anything to fix it at this point. The dismissal is require. /12

That doesn't mean the Govt can't re-charge him, IF the court dismisses w/o prejudice but it does mean he'll be released & he will get credit for the time that he was detained for all purposes if he is re-arrested. Plus, it's a bad look if the Govt tries to detain him again. /13

Once Denney is released, it needs to be seriously looked at as to how this happened. Ship should ask the court to make a referral to the Marshall's service at least to explain the absurd 46 day transport. I may write some letters to various offices about it. It's outrageous. /14

If you started with this thread and you want to go back to where the whole thing started last week, here's the link of where to start:

Update Morning of March 7

A new order popped up on the docket this morning. It is dated March 5 (Friday), but it was not on the docket last night when I looked at it last & that was late.

The DC magistrate is now apparently engaged. 😃He ordered the Defendant to appear IN PERSON. (These hearings are being held virtually these days.) That's a good sign that the release is coming.

He also ordered: "The Court further ORDERS the United States to prepare to explain the delay in scheduling the Defendants appearance after his arrival to the District on or about January 31, 2022."

Someone's got some 'splaining to do.

I don't think the courts are going to like the answers that they are going to get (if the prosecutors are honest about what happened, which so far they haven't really been.)

"Well, judge, we thought we could just schedule a second "Initial Appearance" and just start the whole constitutional timelines thing running again."

The Judge:

Per @shipwreckedcrew, the defendant, Denney, is not at a very nearby facility. He's at one a few hours away. I wonder if the magistrate knows that. It will be interesting to see if he actually appears in person.

Further thread on what happened at the hearing on March 7, 2022.