March 21, 2011 | by Lou Chibbaro Jr.
White House protesters appear in court

(Washington Blade photo by Michael Key)

A U.S. District Court judge told a federal prosecutor in court on Friday that the government appeared to be invoking an overly harsh charge against 13 LGBT activists who were arrested for handcuffing themselves to the White House fence last November to protest the “Don’t Ask, Don’t Tell” law.

In a status hearing at the U.S. courthouse in D.C., Judge Magistrate John M. Facciola said the government’s decision to charge the protesters with a misdemeanor offense that carries a maximum penalty of six months in jail seemed out of keeping with other non-violent civil disobedience cases that involve the arrest of protesters.

Facciola noted that attorneys representing the 13 activists — including former Army Lt. Dan Choi and former Army Staff Sgt. Miriam Ben-Shalom – have called for a trial of each of the defendants unless the government agrees to a less serious charge. A trial for 13 people would cost the government a considerable amount of money and would take up court time that could better be used for other cases, the judge said.

“We think the judge was telegraphing very clearly that he sees the case very similar to the way we see this case — as a civil rights exercise, as a First Amendment exercise as people who non-violently expressed their opposition to a policy which has now been repealed,” said defense attorney Mark Goldstone after the hearing.

Goldstone said Assistant U.S. Attorney Angela George, the prosecutor in the case, has so far declined to consider a number of possible alternative charges proposed by the defense. Among them is a less serious disorderly conduct charge that falls under D.C. law rather than the current federal charge filed against the defendants: failure to obey a lawful order by U.S. Park Police.

Park Police, which patrol the space surrounding the White House, made the arrests in the case after the protesters handcuffed themselves to the fence in front of the White House on Pennsylvania Ave., N.W.

George cited various reasons why the government chose not to accept the suggested options offered by Goldstone and attorney Ann Wilcox, who is assisting Goldstone in the defense. Among other things, she said technical and legal restrictions would likely prevent the government form filing other charges.

Goldstone and Wilcox have proposed, among other things, a “post and forfeit” option that allows the defendants to pay a fine and calls for the charge to be dropped. The two also proposed that the defendants be charged with another misdemeanor offense that allows the government to drop the charge if they successfully perform community service work.

According to the two attorneys, all these options have been used in numerous past cases involving non-violent civil disobedience arrests. Goldstone noted that Choi and another LGBT protester who were arrested for handcuffing themselves to the White House fence in an earlier protest last year were offered a post and forfeit option.

He said that while the judge would not likely issue a six-month sentence if the defendants pled guilty to the current charge, a guilty plea to such a charage would result in them having a permanent criminal record. A criminal record could result in at least two of the defendants, including Ben Shalom, losing their jobs as teachers, he said.

“For some unknown reason, they are taking a harder line in this case,” Goldstone told reporters after the hearing.

Facciola directed George to continue to negotiate with the defense on a possible alternate charge or course of action. He scheduled a follow-up status hearing for May 17. If no agreement is reached by then he directed the parties to return to court on Sept. 19 for either the start of a trial or a plea to an agreed upon charge.

A spokesperson with the U.S. Attorney’s office said Monday that the office would have no comment on the case while is pending in court.

In addition to Choi and Ben-Shalom, the other defendants in the case include former Petty Officer Autumn Sandeen, former Cadet Mara Boyd, former Maine Corps Sgt. Justin Elzie, former Army Arabic linguist Ian Finkenbinder, Marine combat veteran Crpl. Evelyn Thomas and Army veteran Rob Smith.

Others include Robin McGehee, co-founder of GetEqual, the direct action LGBT group that organized the White House protest; Dan Fotou, GetEqual’s eastern regional field director; Fr. Geoff Farrow, a Catholic priest who was suspended by Catholic authorities in California for defending the state’s same-sex marriage law against Proposition 8; Scott Wooledge, an LGBT rights advocate and blogger; and Michael Bedwell, a longtime LGBT activist and friend of Leonard Matlovich, the late LGBT activist and former Air Force sergeant who became the first known gay to publicly declare his sexual orientation in 1975 to challenge the military’s ban on gay service members.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

4 Comments
  • I just returned home from Washington D.C. following my court appearance with the other 12 defendants in this criminal case. I read the article. I am disappointed that you omitted my name, the only woman of color, out of the article. Are you aware the largest percentage of people impacted by DADT is “Women of Color”? The Washington Blade services Washington D.C. which has a population of approximately 70% People of Color. Did you leave my name out intentionally? I would like a correction immediately. “Women of Color: The Forgotten Ones” will not be left out.

    • Your numbers seem a bit off:

      http://www.servicemembersunited.org/?p=1559

      Regarding DC population: 70 % too high based on the latest Census numbers. In 2008 CB said about 54 percent of the city is African American and 40 percent is white – with a continuing decline in the AA population.

      So you might want to get that right before asking for corrections. Others are watching and waiting for errors just like this to condem us all.

      I dount that the omission of your name was itentional but a big mistake nonetheless.

      Good luck to you all.

  • Milk this story for all it’s worth … they are simply hoping people will donate. This childish stunt didn’t change any minds or votes. Go to Court and pay your fines. Enough already.

  • Your numbers seem a bit off:

    http://www.servicemembersunited.org/?p=1559

    Regarding DC population: 70 % too high based on the latest Census numbers. In 2008 CB said about 54 percent of the city is African American and 40 percent is white – with a continuing decline in the AA population.

    So you might want to get that right before asking for corrections. Others are watching and waiting for errors just like this to condem us all.

    I dount that the omission of your name was itentional but a big mistake nonetheless.

    Good luck to you all.

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