Feds admit breaking law with delay in case against alleged Jan. 6 rioter

Federal prosecutors admitted Monday to losing track of one jailed defendant in the storming of the Capitol and conceded that the indictment against him should be dismissed, but they urged a judge to permit the charges to be refiled because of the seriousness of his alleged attack on police during the Jan. 6 riot.

In a highly unusual court filing, lawyers from the U.S. Attorney’s Office said the handling of the case against Texas resident Lucas Denney violated his rights under the Speedy Trial Act. Prosecutors said errors and oversights led to Denney sitting in a Virginia jail for weeks last month as he awaited his first court appearance in Washington, D.C.

“There was nothing intentional or nefarious about the delay. It was an isolated incident, unlikely to happen again, and the time frame—while undoubtedly regrettable—is nevertheless not significantly egregious to warrant dismissal with prejudice,” Assistant U.S. Attorney Jennifer Rozzoni wrote.

Denney was arrested in Mansfield, Texas, on Dec. 13 on a criminal complaint charging that he grappled with police at the Capitol, swung a metal pole at an officer and threw projectiles at a line of police. He appeared in federal court in Del Rio, Texas, on Dec. 14 and Dec. 17, where a magistrate judge ordered that he remain in custody and be transferred to Washington to face charges.

Denney then seemed to disappear from the court system for a couple of months. Records show he arrived Jan. 31 at a jail in Warsaw, Va., used to hold some federal court suspects. Denney’s attorney, John Pierce, was aware by Feb. 4 of his client’s arrival in Virginia, emails show.

Scheduling of an initial court appearance in Washington for Denney was discussed among the lawyers involved and court personnel, but seems to have gone unresolved until Feb. 25, when he was puzzlingly given a court date two weeks later although the court’s duty magistrate judge typically sees Jan. 6 defendants nearly every weekday.

Denney’s lawyers filed an emergency motion for his release on March 2, citing the protracted delays in his appearance and the failure of the government to obtain an indictment in his case within 30 days of his initial court appearance in Texas.

During a hearing last week, a federal magistrate judge in Washington scolded prosecutors over their handling of the case. U.S. Magistrate Judge Zia Faruqui said the Justice Department seemed overwhelmed by the work required to pursue criminal cases against the nearly 800 defendants they have charged in the Capitol riot.

“The government has chosen to charge the largest case ever,” said Faruqui, who noted he was formerly a prosecutor in the same U.S. Attorney’s Office leading the investigation. “If they do not have the resources to do it, they ought not do that. … It feels like the government has bitten off more than it can chew here.”

Faruqui also apologized profusely to Denney.

“You have been lost for months,” the judge said. “There’s no excuse to treat a human being like that. … There is no circumstance under which any person should be forgotten.”

Faruqui ruled that the government had violated Denney’s rights under the 1974 law designed to expedite criminal proceedings in federal court. However, the judge said he could not release Denney because — on the same day as his first court appearance in Washington last week — prosecutors obtained a single-count grand jury indictment charging him with assaulting a police officer with a metal pole amidst the Jan. 6 riot.

Denney was set to appear before U.S. District Court Judge Randy Moss for arraignment on that charge Monday afternoon. It was not immediately clear if that hearing will go forward as scheduled or whether Denney will be released prior to the hearing.

If Moss grants the motion to dismiss the case without prejudice, prosecutors could obtain a new indictment of Denney, perhaps within days, making the delays and admitted legal violation by the government simply a footnote in the litigation.

However, if Moss dismisses the case with prejudice, prosecutors would be precluded from refiling the same charge against Denney and might be blocked from charging him with any of the alleged conduct that led to his arrest in December.

“To be sure, the government failed to comply with the Speedy Trial Act in this case. But there is no evidence of bad faith, a pattern of neglect, or something more than an isolated incident that resulted from a number of unfortunate factors,” wrote Rozzoni, who is based in New Mexico and is one of dozens of prosecutors across the country helping D.C.-based prosecutors handle the slew of Jan. 6 cases.

Most of the nearly 800 defendants have been released within days of their arrests. However, several dozen have been ordered detained pending trial, often in cases where they are accused of violent assaults on police officers. A handful of people are being detained on accusations of conspiring to organize the storming of the Capitol in a bid to block or delay Congress from certifying President Joe Biden's win in the 2020 presidential election.

While Faruqui said last week that Denney’s case was an aberration and prosecutors termed it "an isolated incident," early last year, there were numerous unexplained delays in Jan. 6 defendants making their first court appearances. In one case, Faruqui himself complained forcefully about the three weeks it appeared to take for one detained defendant to be transferred from a Virginia jail to D.C. — a roughly two-hour drive.

“The buck has got to stop somewhere and it stops with the judges because that’s our job to keep the system moving….It’s just not acceptable,” the judge said last March at a hearing for Capitol riot defendant Jonathan Mellis. “Whatever little solace it is, we are going to figure out what happened and ensure it doesn’t happen to somebody else.”