Thread by @McAdooGordon

Denney Case: What happened today & what happens now?
You could hear the frustration in Judge Faruqui's voice that the Govt left Denney sitting around for weeks & didn't give him the Preliminary Hearing he was entitled to in Texas but he thought he could do nothing about it. /1

On the one hand, he did take the govt to task for screwing up the procedure because they are the ones that are supposed to be handling it & doing so properly & it's not small potatoes when you're talking about liberty. /2

On the other hand, he's a magistrate judge & he's right that that does limit the power that he personally has & one of those limitation is that he can't override the ruling of another magistrate (per a decision of the Chief Judge in our court). /3

On another hand, he could have treated this case more like the 5 alarm fire that it is by ordering the Govt to have it briefed in a short time (he gave them a week) & not setting the next hearing out two weeks. That is outrageous under the circumstances. /4

That happened for several reasons: he thought he could only rule on the Preliminary Hearing issue, not the Speedy Trial Issue today, & the Chief Judge ordered him to prepare a report & make a recommendation to her, which creates delay. /5

The govt has not yet answered Shipley's motion to dismiss the complaint & they have two weeks to do so under the normal rules. Until it's briefed, a judge typically is reluctant to rule. But, he's letting the "normal" rules further compound the damage to Denney. /6

When all the briefing is said and done, this judge or another is going to rule that the Govt violated the Speedy Trial Act and that the charges against Denney must be dismissed. There is no other outcome in this case. /7

The time to decide that was NOW. It's his continuing to sit in jail that is the problem, not that some theoretical deadline was missed. The detention in non-viable charges is what creates the harm. /8

This judge (& probably the Chief too) is just gobsmacked that this has happened the way it has, so they can't focus clearly on the precise issue that need urgently to be resolved - Denney's DETENTION. /9

DOJ can get another indictment or charge him again if the case is dismissed. And maybe he gets detained on that charge. But, that's not the crucial issue right this minute, which is that there is no legal charge on file & thus his detention is invalid. /10

Judge Faruqui is correct that the cases say that an indictment "fixes" the problem that the defendant did not receive a Preliminary Hearing, but so what? The real issue is the Speedy Trial Act, not Rule 5 or 5.1. /11

That there is any real possibility that Denney is being held illegally should have driven the magistrate & the Chief to demand answers immediately of the Govt & move as fast as possible to a resolution of that question. Two weeks is not cutting it. /12

You could hear the relief in the voice of the AUSA that it wasn't worse that it was & that Denney didn't get released. They know EXACTLY how messed up what happened is. /13

That they are not moving at light speed is because they think it just can't be that there's a Speedy Trial Act violation here. But there is a clear violation. They are blinded to it because they consider it unlikely./13

They will be shocked when it turns out, as it inevitably will, that the indictment that the Govt got today MUST be dismissed for violation of the Speedy Trial Act. The bad thing is that that won't happen for another 2 to 3 weeks & meanwhile Denney sits in jail. /14

Further, the law considers that these next 2-3 weeks DON'T COUNT for purposes of the Speedy Trial Act in any indictment the Govt would bring after the one that will be getting dismissed. /15

Denney will get credit for the 2-3 weeks of further detention against any sentence he has to serve, assuming he gets sentenced on charges that relate to the ones in the Complaint from December 2021. /16

But strictly speaking, his current continued detention is unlawful. He's sitting in jail right this minute based on charging documents (Complaint & Indictment) that violate the Speedy Trial Act and must be dismissed. They aren't worth the paper they're written on legally. /17

Judge Faruqui raised today the possibility that the District Court's Covid-19 Orders might exclude time under the Speedy Trial Act's 30 day deadline. The prosecutors grabbed greedily at that lifeline. But, that's a dry hole. /18

The Chief Judge's Covid-19 Orders only excluded time under the Speedy Trial Act for indictments from March 17, 2020 to July 15, 2020. The Orders are still excluding time for TRIALS, but haven't dealt with indictments in a year and a half. That won't save them. /19

I'm surprised the magistrate didn't already know that. The grand jury has been in operation here since Summer 2020. THEY GOT AN INDICTMENT TODAY IN THIS CASE FOR PEET'S SAKE. /20

Getting that indictment will have an effect on the case, however. Once it's filed w/the court, it will be assigned a regular case number & to a regular judge, which will divest the magistrate & Judge Howell of jurisdiction. So, we'll see what happens then. More to come. /21