Preliminary evidenceshows ‘vindictiveprosecution’
By LOU CHIBBARO JR.email@example.com
A federal judge on Wednesday suspendedthe trial of gay former Army Lt. Dan Choi afterthe prosecutor said she would challenge hispreliminary ﬁnding that sufﬁcient evidenceexists that Choi was targeted for “vindictiveprosecution” in connection with a WhiteHouse protest last November.Choi and 12 other activists werearrested Nov. 15 for handcufﬁngthemselves to the White House fence toprotest the “Don’t Ask, Don’t Tell” law.Choi faces a possible sentence of sixmonths in jail or a $5,000 ﬁne if convictedon a misdemeanor charge of disobeyinga lawful order to disperse from the fence.In a tense exchange between U.S.District Court Magistrate Judge JohnFacciola, prosecutor Angela Georgeannounced she would ﬁle a request fora writ of mandamus or legal challengebefore the court’s chief judge tocontest Facciola’s decision to allowChoi’s attorneys to pursue a vindictiveprosecution defense.Facciola responded by saying he wouldsuspend the trial for 10 days to giveGeorge, an assistant U.S. Attorney, time toprepare a motion for a writ of mandamusand to provide Chief Judge RoyceLamberth time to consider it.William Miller, a spokesperson forthe U.S. Attorney’s ofﬁce, conﬁrmedthat George would seek the writ of mandamus from Lamberth. But hedeclined to comment further on thematter, saying his ofﬁce never commentson pending cases.If Lamberth grants the request, legalobservers say Facciola would likely bedirected not to allow Choi’s attorneys topursue a vindictive prosecution defense.Should he turn down the request, Facciolawould be free to allow the vindictiveprosecution defense to move forward.Such a defense would allow Choi’sattorneys to pursue documents andsubpoena witnesses that Choi’s supporterssay could possibly link the alleged effortto go after Choi for a harsher prosecutionto higher-level government ofﬁcials,including ofﬁcials at the White House.Defense attorney Robert Feldman calledFacciola’s ﬁnding that the defense presenteda “prima facie case” that a vindictiveprosecution occurred a “vindication”of Choi’s longstanding contention thathis arrest and prosecution violated hisconstitutional right to free speech.The clash between George and Facciolacame on the third day of the trial and oneday after Choi testiﬁed for more thantwo hours as the lead witness for his owndefense, saying he was exercising his FirstAmendment right to free speech at theWhite House protest.In response to Feldman’s questions,Choi testiﬁed at length about his role as acivil rights activist for LGBT people and forgays in the military. He told how he modelshis actions on the black civil rights movementof the 1960s, including the famous lunchcounter sit-ins at a Woolworth’s departmentstore in Greensboro, N.C., that challengedsegregation laws.Choi testiﬁed that a series of three WhiteHouse protests against the “Don’t Ask,Don’t Tell” law on gays in the military, inwhich he and other activists were arrestedat the White House fence, were basedon the same principle used in the blackcivil rights movement for exercising aconstitutional right of free speech.“I believe that was a transformativemoment,” he said of the White Houseprotests.George objected repeatedly to Choi’sdialogue on civil rights, saying it wasnot relevant to the case at hand. To theamazement of some courtroom observers,Facciola overruled her objections almostevery time she raised them.In her cross-examination of Choi,George pressed the former Army ofﬁcer,West Point graduate and combat veteranin the Iraq war to respond to the chargethat he disobeyed a lawful order todisperse from the White House fence.Choi responded by citing a provisionin U.S. military law pertaining to unlawfulorders.“If you are given an order that is unlawfulor immoral, it is your duty to disobey thatorder,” he said.Feldman and defense co-counselNorman Kent told reporters covering thetrial that Choi’s defense is based, in part,on the premise that prosecutors singledhim out for a harsher prosecution whenthey charged him with violating a federalregulation pertaining to White Houseprotests and demonstrations along theWhite House fence and sidewalk.The federal regulation carries a penaltyof six months in jail and a possible $5,000ﬁne. The two attorneys said peoplearrested in virtually all other White Housedemonstrations in recent memory –including Choi and other activists in similarprotests in April and May of 2010 – werecharged under a D.C. municipal ordinancethey compare to a trafﬁc violation thatcarries no prison sentence.In his testimony on Tuesday, Choi saidhe believes prosecutors decided to invokethe far more harsh federal regulationagainst him in the Nov. 15, 2010 case,which he now faces at trial, because of hisrole as a gay former military ofﬁcer who is“standing up for my beliefs.”Choi stated in his testimony that thousandsof people appeared to have violated thesame regulation with which he was chargedwhen they gathered at the White Houseearlier this year to celebrate President BarackObama’s announcement that accusedterrorist Osama bin Laden had been killed ina U.S. military operation in Pakistan.Choi and his attorneys noted thatdozens of the revelers that evening clungto the White House fence and did notmove back and forth along the sidewalk,as required under the ordinance for ademonstration, when they cheered andexpressed support for the president’s rolein bin Laden’s capture and death.By not attempting to disperse or arrestthe throngs that congregated at the fenceon that occasion while they arrested Choiand other protesters for challengingObama on his handling of the “Don’tAsk, Don’t Tell” law shows that Choi wassingled out for “vindictive” prosecution,Choi’s attorneys argue.
CONTINUES AT WASHINGTONBLADE.COM
02 • SEPTEMBER 02, 2011LOCAL NEWS
Former Army Lt.
and 12 others werearrested last year after protesting ‘Don’t Ask,Don’t Tell’ at the White House.
WASHINGTON BLADE FILE PHOTO BY MICHAEL KEY
Choi trial halted after challenge to judge’s ruling
O’Malley to headlineEquality Md. event
Equality Maryland has an event slated for Wednesday in which several local electedofﬁcials will be honored including Gov. Martin O’Malley who said in July that getting asame-sex marriage law passed next year is among his legislative goals.Dubbed “Celebrate and Honor,” it will be held from 5:30 to 7:30 p.m. atChevy Chase Town Hall (4301 Willow Lane in Chevy Chase) with cocktails andpresentations. Aside from O’Malley, Lt. Gov. Anthony Brown, Attorney GeneralDoug Gansler, Comptroller Peter Franchot and Howard County Executive KenUlman will be honored.Lisa Polyak, interim board chair for the organization, said the board decidedwhom to honor and was in agreement in its decisions. The organization hastypically held a gala-type event but scaled back this year as it attempts to stabilizethe organization after the departure of former director Morgan Meneses-Sheets,whom they ﬁred in April after a disappointing 2011 legislative session that saw amarriage bill fail.O’Malley, criticized by some Maryland gays for previously supporting civilunions over marriage, changed his tune after a marriage bill passed with stronggubernatorial support this year in New York. Did the board fear some criticismwould emerge for their decision to honor O’Malley so quickly when for years hedid little to help their cause?Polyak said no.“I think it’s a good idea to honor people who come out publicly in their supportand pledge to put the strength of their ofﬁce fully behind us,” she said.Tickets are $50. Sponsorship levels are available ranging from $1,000 to $5,000.Go to equalitymaryland.org and look under “events” for details.Polyak said Equality Maryland has stabilized in recent months. She said theorganization is operating in the black again after a shaky start to the year and afull board — bylaws say the C-4 arm can have 15 members — by month’s end.Many qualiﬁed candidates have applied for the executive director position,she said, which they hope to ﬁll “no later than November.” She credits the ﬁvecurrent board members for “working their ﬁngers to the bone” to stabilize theorganization this summer.