Thread by @McAdooGordon

Denney case. Hearing starting in two minutes.

I'm logged into the public line. 14 people on the line. There were only 7 when I logged in on Monday, so a little more public interest I guess. 🤷‍♀️

Clerk is asking if Ship can hear them; he says yes. She says the judge will be out shortly.

Ship is on video. Mr. Denney is in the courtroom.

Clerk says there are spectators too. Press, I'm suspecting. Possibly also folks from DOJ. They will sometimes send people to observe proceedings if they are novel or uncommon.

I have a defense lawyer friend who always draws a crowd when he does closing arguments. :-)

Earlier today, the govt filed a pleading with the judge setting forth a basic set of facts and elements of the offense charged - the one count of assault - for the judge to use as a guide for the plea.

To be honest, pleas are boring for lawyers. It's the same questions every time about voluntariness, knowingness, what's in the plea agreement if there is one, is there a factual basis, etc. Nothing to argue over usually. It's also kind of long for what it is.

Normally, I would not bother listening to a plea at all. And, I'm not expecting any fireworks today. But with this case getting the press it has, I"m here.

"Knock knock." All rise!

Judge has arrived. Says good morning.

Clerk calling the case.

Judge thanking everyone. Asking if Denney has any objection to Ship being on video; also one of the prosecutors. It's a covid protocol. He has no objection. Judge says great.

Judge wants to start with the arraignment.

Clerks says what the charge is and asks if he wants to waive a formal reading of the indictment and plead.

John Pierce, who is in the courtroom says he does waive and he enters a plea of guilty.

Judge noting that Ship has filed a motion to withdraw his earlier motions to dismiss and for release.

Ship agrees with clarification that there is no pending motion on the Indictment, but only as to the Complaint as there was no Indictment on file at the time of the motion.

Judge acknowledges. He says it leads to his next question which is whether Ship is waiving the Speedy Trial Act problems. Ship says yes. Judge is now confirming with Denney that he understands he's waiving those problems.

Denney says yes and he's had time to confer with his lawyers about it. Ship also confirms.

Judge says OK; asks clerk to put Denney under oath for further questions (he probably should have done that before, but he's doing it now.)

Denney is put under oath by the clerk.

Judge now proceeding to plea colloquy - this is what lawyers call all the questions/issues the judge has to cover to properly accept the plea.

Judge sounds calm and measured. I think he's found his footing on this case and taking a plea at arraignment. 😁

Judge asking prosecutor to describe charges in Indictment. Prosecutor describes one charge of assault.
Judge asks if prosecutors if they have decided to bring any other charges. Govt says they haven't decided yet.
Me: They aren't going to be able to because of double jeopardy.

Judge is asking Denney if he knows that they can bring other charges. Denney says no, he didn't understand this. (I am confident Ship will have explained this to him, but clients are understandably intimidated when dealing with a federal judge.)

Judge is now going off the track again, saying it is likely the Govt will be bringing more charges against him later.

It is not likely at all actually. The majority view in the federal courts is that that would be a double jeopardy violation.

The DC Circuit has not technically decided that specific point, but the chances that they will deviate from the majority view of the other circuits is vanishingly small.

They have gone into a break out so Ship can explain it to Denney.

They judge was saying that since Denney doesn't have a plea agreement he has no guarantee that they won't bring more charges, which is technically true, but practically speaking extremely unlikely.

The Judge INCORRECTLY told him that with a plea agreement the govt would bind itself not to bring other charges, which would ordinarily be mostly correct, but in these Jan6 cases the govt is NOT doing that. They are reserving the right to bring other charges, which is a problem.

This judge is not understanding the way the govt is actually prosecuting these cases.

We'll see what Ship has to say when they come back. Right now it's all silence while they confer with the client.

In a run of the mill plea you wouldn't need to do this, but there are times when something new comes up or the client is so stressed by the proceeding that they freeze when the judge asks them questions & the proceeding stops so you can tell the client something.

And sometimes even you take a break if it is significant enough. The person has a right to consult with their counsel, especially in making such a significant decision as whether to plead guilty or not. The judges are normally very solicitous of any request to stop & confer.

It is really the govt making the problem here though. They almost certainly have no intention of bringing more charges as they know as well as I do what the law on that is, but they don't want to commit to it.

They pull this shit all the time, using intimidation to try to pressure people out of exercising their rights or trusting their lawyers' advice. It's gross, but entirely within their playbook.

Sounds like they are trying to restart. They are doing sound checks for Ship.

Judge is back on the record. Asking if Denney's had time to confer with counsel.

Denney now saying that he understands they COULD bring other charges. Judge says fine.

Judge asking if he understands the govt could use uncharged conduct for purposes of sentencing.

Denney says yes

Ship saying they could use that even after a trial.

Judge agrees but raising the issue about double jeopardy with Ship.

Ship saying they looked at the double jeopardy issue. He tells the judge what I just said: the circuits are majority saying new charges would be barred.

Judge asks if DC Circuit has ruled on it? Ship says no.

But Ship demonstrating that he knows the law and has looked at it and has discussed it with Denney has caused the judge to back down a bit.

Judge now asking the normal questions: Have you read the charges? Are you on meds that might interfere with decision making? Are you a citizen? Have you had enough time to confer with your lawyers? Denney says yes, except to meds (except for his PTSD).

He asks if Denney is happy with the services of his lawyers. Denney says: "Definitely yes, yes Sir."

Judge now going over all the rights he gives up: jury, right to confront, presumption of innocence, govt would have to prove by a preponderance, appeals rights, etc. Denney says he understands all that he's giving up.

Judge moving on to whether there is a factual basis for the plea. Asking Ship how he wants to go forward with the factual basis.

Ship refers to the factual statement submitted by the govt as a guide earlier today, says basically they don't agree to every fact in there but they do agree that there are facts to support the charge.

Judge saying there hasn't been full discovery yet; is Denney okay with not having ALL discovery before he makes a plea. Denney says yes, after Ship points out they got the video of the charged offense (assault), they just don't have all the discovery for purposes of sentencing.

Judge now going through the ELEMENTS of the offense, impeding the officer, with force. Denney says yes.

Judge saying Denney use some kind of pole at the officer. Denney says yes, it was a plastic pvc pipe. Agrees he hit an officer of the US with it.

Denney agreeing the officer was engaging in official duties and he did it intentionally and it was a dangerous weapon.

Judge asking if Govt has any other questions he should ask.

Prosecutor now detailing ALL the discovery they sent Ship. Which is irrelevant, because Ship wasn't claiming they were withholding discovery, his point was he had sufficient discovery for this plea but would be expecting more for sentencing purposes.

Judge acknowledges. Asks Ship if he agrees Govt could have established all the elements of the charge.

Ship says yes with regard to the named officer. (This is because there were two assault charges originally on two officers.)

Judge accepts. He's now telling Denney what the potential maximum penalties would be.

On assault, it 20 years, post sentence supervision, $250,000 fine, Restitution, & a "special assessment," and other fines.

Denney acknowledges. Judge now moving to talk about the Sentencing Guidelines. He says Congress passed those to "help judges." NO THEY DIDN'T, BUT OK.

Judge now telling him what I told you guys earlier - that nobody is bound by the Guidelines at this point, but he (the judge) does have to consider them. Denney understands.

Judge now telling him the stuff the parties AGREE on under the Guidelines, base of 14, plus 2 levels for a specific part of the statute.

Now he's going over the differences between the lawyers' assessment of the rest of the Guidelines that might apply. He acknowledges that he will have to decide these issues for the sentencing.

Judge is saying both parties agree that 3 levels should come off for his plea. (This is good because the Govt could have said only 2. 👍).

The Govt wants 2 more levels for "substantial planning." Denney's lawyer's don't agree. Judge acknowledges that he'll have to decide that.

He's asking if Denney understands the lawyers are disputing the ultimate final level and he'll have to decide that and could go up or down on the sentence.

He's asking if Denney understands that the Guidelines are not binding but he has to consider them and other factors. Denney is going along with all this, as all defendants do, but this part of the whole thing is a pro forma performance basically.

Now he's asking if Denney has been threatened, coerced, promised anything, etc. to get him to plead or what his sentencing is going to be?

Denney agreeing he understands.

Judge saying - AS I SAID HE WOULD - that he has no idea what sentence will be imposed because all the sentening work has to be done first. Denney says he understands.

Judge now asking if he's ready to plead?

Denney says yes. He enters a plea of guilty. Judge asks if he's doing so because he is in fact guilty (this is the standard question). He says yes.

Judge accepts plea.

Judge asking if there is anything on the docket that needs to be addressed. Lawyers agree nothing except to clear off the remaining briefing and hearing with the magistrate. Judge says they will alert the magistrate.

Judge asking about detention status. Govt wants him detained pending sentencing. Ship says that are going to review that now that the plea is entered and will advise the court & Govt about addressing that shortly.

Judge sets sentencing for June 10; orders sentencing memos due on June 2.

"See you in June. Thank you."

FYI: The detention standard post-plea is a bit harder than the pre-trial standards, but it is possible to get someone released between the plea & the sentencing. But, you want the judge to have way more info than he has now about the client, so that will have to be worked up.

Typo sorry: Sentencing is June 9.