Wednesday Writs: January 6th Defendants Edition

Photo by Lucas Denney

WW 1: Federal prosecutors admitted to a little oopsy that violated the constitutional rights of a January 6th defendant, who sat forgotten in jail for months and was denied his right to a speedy trial. The defendant’s first court appearance was on December 14th, after which prosecutors had 30 days to indict. He had a second hearing on December 17th, and didn’t see a judge again until March 2nd, nor was he indicted until this month.

It’s not that I have a lot of sympathy for the defendant, Lucas Denney, who allegedly tried to hit a Capitol police officer with a pipe and threw things at other officers on January 6th. But it doesn’t matter who the defendant is, in my opinion, when the government is violating rights. And Denney’s lawyers tried to use the situation to his advantage, but District Court Judge Randy Moss (yes) is still deciding whether or not to bail the feds out for what the prosecutors claim was not “intentional or nefarious.”

Prosecutors concede that the charges should be dismissed because of their error, but they want the Court to do so “without prejudice,” meaning they could re-charge. Denney’s lawyers first asked for a dismissal with prejudice which would preclude them from doing so. But later in the hearing, they tried a new strategy: asking the Court to accept Denney’s guilty plea to the single count under which he is indicted, assault on an officer.

Sounds crazy, but there is some reasoning here. If Denny was adjudicated on the charge against him, there’s a significant argument that prosecutors would be prohibited by double jeopardy from bringing additional charges that stem from essentially the same January 6th incident or conduct.

Personal story on how I learned the hard way about this rule: I was a brand new lawyer and working as an assistant prosecutor in magistrate court in a small county here in West Virginia. The case involved a man whose home and property was strewn with trash and debris and he was charged with an “open dump.” Super serious stuff, right? But because I was new and gung-ho to flex my mad fledgling lawyer skills, we had a trial. Just a bench trial (no jury) but the defense attorney was one of the bigger names in the area. I subpoenaed witnesses for this, everyone. I methodically conducted my thorough direct examination, got my officer’s pictures entered into evidence, and got myself a guilty verdict. I was very pleased with myself.

“Congratulations, young lady,” said opposing counsel (gross). “Tell your boss she’ll have my motion to dismiss the meth lab indictment on her desk by tomorrow afternoon.”

The what now?

The meth lab, which had also been found at the man’s home where they found the open dump. The officers involved filed the misdemeanor open dump charge along with the felony meth lab charge. The felony was kicked up to circuit court, as it was supposed to be, but the misdemeanor case stayed in magistrate court. The dump complaint said nothing about a meth lab, nothing in my file alluded to it, and my boss never mentioned it. And since the magistrate court files were not kept in the same cabinet with the felonies I had no idea. I’m sure I looked up his name for prior offenses and may even have seen the meth lab charge, but it never occurred to me that one had anything to do with the other.

But they did. In fact, the photographs I helpfully entered into the record plainly showed meth lab garbage. Tubes, 2liter bottles, empty containers of acetone, etc. The defense attorney filed a motion to dismiss the indictment on double jeopardy grounds, arguing that he would be “twice put in jeopardy” because both crimes arose at the same time from the same circumstances and were even based on the same evidence. He won and the meth lab case disappeared forever. And forever after, I made sure no lingering misdemeanors were left behind in magistrate court when accompanied by a felony.

So back to Mr. Denney. When he finally got in front of a judge on March 2 for a hearing on his emergency motion to be released, prosecutors hurried up and secured a 1-count indictment in order to keep him detained. Likely, there are other charges that can and will be added if prosecutors are allowed to proceed. His lawyers figured if the Court would accept his plea to the only charge against him, it would preclude prosecutors from indicting him on any other additional charges arising from his alleged participation in the January 6th riots. The judge was not so sure, and reminded the lawyers that uncharged January 6th conduct could be used to enhance his potential sentence. Judge Moss declined to accept the guilty plea and reset the case for Thursday while he contemplates what to do.

As was noted by federal Magistrate Judge Zia Furuqui, who oversaw Denney’s case when it was finally brought to hearing, prosecutors have apparently bitten off much more than they can chew with this mass prosecution of over 800 January 6th defendants. Said Furuqui: “If they do not have the resources to do it, they ought not do that.”

Especially if they can’t do it constitutionally.

WW 2: A new federal law prohibits forced arbitration of sexual assault or harassment claims. Previously some states had passed similar legislation, but were arguably pre-empted by federal law that allowed employers to force claimants into arbitration instead of court.

WW 3: A few weeks ago in this space we learned that UC Berkeley claimed it would have to reduce its incoming fall class by thousands due to a court decision in favor of a neighborhood group unhappy with the university’s growth. The legislature quickly rectified the situation with a bill, promptly signed by Governor Newsom, loosens some requirements of the California Environmental Quality Act which requires universities to evaluate the potential environmental effects of their growth. The NIMBYs vow to fight on.

WW 4: Jussie Smollett was sentenced to 150 days in jail for charges arising out of his staging a fake hate crime against himself in 2019. His lawyers have asked the court for a stay on his sentencing and for his release pending appeal. Smollett is kept separate from other inmates for his own safety, which his lawyers describe as solitary confinement. They also argue he is at higher risk of contracting a severe case of Covid-19 due to a compromised immune system.

WW 5: Justice Thomas has signaled he is very interested in hearing a challenge to the “sweeping immunity” he says Section 230 gives to tech platforms. He made the statement as part of a denial of cert in the case of Jane Doe, a teenage girl who was raped and beaten by an adult she met on Facebook. The girl sued Facebook, but asked the Supreme Court to intervene when part of her claim was dismissed due to Section 230 protections. The Court denied cert without comment, but Thomas wrote separately to state that although he did not find review appropriate in Jane Doe’s case, he hopes to have another case he cares more about – er, I mean, is more ripe for review come before the court