Washington – An alleged member of the Patriot Boys militia group charged with multiple crimes stemming from the January 6 Capitol attack said he would plead guilty to one felony count of assaulting officers with a pole on Monday after prosecutors said they made an “unintentional” procedural error since initially charging him. 

Lucas Denney of Texas was accused of multiple felonies via criminal complaint, a charging document does not require the consensus of a Grand Jury, in December of 2021. Court documents alleged he grabbed a large tube outside the Capitol building and swung it at officers before he made his way to a large police line inside the west tunnel of the Capitol. 

Denney was arrested and detained and has remained in jail since December.

Under the Speedy Trial Act, a formal indictment must be brought by a grand jury against any defendant within 40 days of criminal complaint. But in Denney’s case, prosecutors failed to do so, instead indicting him on a single count of assaulting or impeding officers on March 7, 2021, months after his initial arrest in December. 

His defense team filed an emergency motion to release him from jail because of the law violation.

“Each day Mr. Denney remains in custodial detention is an additional day that his liberty rights are denied without due process in violation of his rights under the Fifth Amendment,” Denney’s defense attorneys wrote, “Mr. Denney should not be made to sit in a jail cell even a single day longer while the Government tries to explain away its failure to comply with the law.”

In a rare move, prosecutors agreed that they made a mistake in not bringing the indictment quick enough and said Denney should be released and the charges dropped, but asked the judge to do so in a manner that allowed them to present Denney’s case to a Grand Jury again. This would leave the possibility of another indictment looming. 

The charges alleged were serious and their error was “unintentional,” the government said, so they should be given another shot to potentially indict Denney. 

“The charges against Denney are of the utmost seriousness. Those charges arise within the context of the attack on the U.S. Capitol, on January 6, 2021, a criminal offense unparalleled in American history,” Monday’s filing said.

“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,” prosecutors added. 

But during a court hearing Monday that was initially scheduled as an arraignment where Denney would be given the opportunity to enter a plea on the single count charged in the indictment, his defense attorney William Shipley alleged the government brought the indictment in “bad faith” after he said they were sent scrambling to get an indictment on the books following their procedural error. 

And in yet another unusual move, the attorney indicated his client was ready to admit guilt and plead guilty to the single count on the indictment without entering into an agreement with the government, a move that would effectively prevent prosecutors from bringing any more charges against their client due to double jeopardy rules. 

Most of the more than 220 guilty pleas entered in the January 6 investigation have involved cooperation or other legal agreements with the government to avoid going to trial.

“Mr. Denney is here, prepared to admit his conduct and plead guilty to the only pending charge,” Shipley told Judge Randolph Moss. The defense told the judge they viewed the evidence against their client and said he was ready to admit guilt to one count. 

The judge agreed with the defense that Denney had been mistreated, even telling prosecutors, “There’s no excuse to treat a person like that.”  But he stopped short of allowing the defendant to plead guilty on Monday, explaining he needed more time to examine the case law. This was a novel predicament prosecutors got themselves into, the judge reasoned, and he needed more time to rule accurately. 

Defense attorney Shipley objected to the proposed delay, telling the judge he feared the government would use the schedule as a way to return a more extensive indictment against his client.

Prosecutor Jennifer Rozzoni told the judge, however, that after discussing the case with a supervisor, the government would not oppose Denney’s surprise decision to enter a guilty plea to assaulting an officer with a pole on January 6. 

The U.S. Attorney’s Office declined to comment for this story. 

“We appreciated the government conceding its error and acknowledging Mr. Denney’s right to plead guilty and will rely on Judge Moss’s judgment at sentencing,” Shipley told CBS News.

Denney’s arraignment, where he will likely plead guilty to the lesser count, is now set for Thursday.