Thread by @rparloff

Accused J6 pipebomber Brian Cole is claiming that he is entitled to release due to govt’s failure to obtain within the allotted time period either a proper grand jury indictment or a judge’s probable cause finding after a “preliminary hearing.” Odd situation. ...
1/10

Under Federal Rules, absent defense consent or “extraordinary circumstances,” you can’t detain someone > 14 days without a finding of probable cause, either by indictment or public preliminary hearing. Prosecutors prefer indictments because they’re secret. ...
/2

Cole has been in custody since 12/4 on a criminal complaint. His initial appearance was 12/5. The mag judge set a detention hearing for 12/15, but didn’t mention a preliminary hearing. Seems like everyone assumed the govt would indict Cole by 12/15—but it didn’t. ...
/3

Instead, on 12/10 the parties agreed to put off the indictment deadline and the detention hearing until 12/30. On 12/24 & 12/27 the defense says it asked the govt if the detention hearing would double as a prelim hearing if there’d still been no indictment. ...
/4

On 12/28 Govt told Cole’s attys that the 12/30 hearing was *not* a preliminary hearing but that no federal grand juries were sitting from 12/16 to 1/5. Cole’s attys said they hadn’t waived the indictment/prelim hearing deadline beyond 12/30. ...
/5

Apparently realizing the problem, on 12/29 the govt got an indictment—but, controversially, from a DC superior court grand jury rather than a federal one. That’s the procedure US Atty Pirro’s office recently resorted to in the case of Kevontae Stewart ...
/6

...In Stewart’s case, the govt went to a superior court GJ after a federal GJ refused to indict. Mag Judge Faruqui refused to accept Stewart’s indictment, but Judge Boasberg reversed, finding it valid. ...
/7
storage.courtlistener.com/recap/gov.usco…

But Boasberg *stayed* his own ruling pending appeal
because he considered the issue “close and challenging” & wanted the DC Circuit to decide it “before the govt moves forward both on this case and in similar fashion on other cases.” ...
/8

Though the stay left Stewart’s case in limbo, Stewart was out on bail, so his disputed indictment wasn’t keeping him detained. In Cole’s case, it *is.* Mag Judge Sharbaugh ordered parties to brief the situation by 12/31. ...
/9

... Stewart’s brief is below. No govt brief appears on the public PACER docket, but it may have been filed under seal. Mag Judge Sharbaugh promised to rule promptly, as he must, given Cole’s continued detention.
/10-end
storage.courtlistener.com/recap/gov.usco…

*Cole's brief* is appended in last post. (Not Stewart's.) Sorry.