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Choi trial halted after challenge to judge’s ruling

Preliminary evidence shows ‘vindictive prosecution’

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Daniel Choi

Former Army Lt. Dan Choi and 12 others were arrested last year after protesting ‘Don’t Ask, Don’t Tell’ at the White House. (Blade file photo by Michael Key)

A federal judge on Wednesday suspended the trial of gay former Army Lt. Dan Choi after the prosecutor said she would challenge his preliminary finding that sufficient evidence exists that Choi was targeted for “vindictive prosecution” in connection with a White House protest last November.

Choi and 12 other activists were arrested Nov. 15 for handcuffing themselves to the White House fence to protest the “Don’t Ask, Don’t Tell” law. Choi faces a possible sentence of six months in jail or a $5,000 fine if convicted on a misdemeanor charge of disobeying a lawful order to disperse from the fence.

In a tense exchange between U.S. District Court Magistrate Judge John Facciola, prosecutor Angela George announced she would file a request for a writ of mandamus or legal challenge before the court’s chief judge to contest Facciola’s decision to allow Choi’s attorneys to pursue a vindictive prosecution defense.

Facciola responded by saying he would suspend the trial for 10 days to give George, an assistant U.S. Attorney, time to prepare a motion for a writ of mandamus and to provide Chief Judge Royce Lamberth time to consider it.

William Miller, a spokesperson for the U.S. Attorney’s office, confirmed that George would seek the writ of mandamus from Lamberth. But he declined to comment further on the matter, saying his office never comments on pending cases.

If Lamberth grants the request, legal observers say Facciola would likely be directed not to allow Choi’s attorneys to pursue a vindictive prosecution defense. Should he turn down the request, Facciola would be free to allow the vindictive prosecution defense to move forward.

Such a defense would allow Choi’s attorneys to pursue documents and subpoena witnesses that Choi’s supporters say could possibly link the alleged effort to go after Choi for a harsher prosecution to higher-level government officials, including officials at the White House.

Defense attorney Robert Feldman called Facciola’s finding that the defense presented a “prima facie case” that a vindictive prosecution occurred a “vindication” of Choi’s longstanding contention that his arrest and prosecution violated his constitutional right to free speech.

The clash between George and Facciola came on the third day of the trial and one day after Choi testified for more than two hours as the lead witness for his own defense, saying he was exercising his First Amendment right to free speech at the White House protest.

In response to Feldman’s questions, Choi testified at length about his role as a civil rights activist for LGBT people and for gays in the military. He told how he models his actions on the black civil rights movement of the 1960s, including the famous lunch counter sit-ins at a Woolworth’s department store in Greensboro, N.C., that challenged segregation laws.

Choi testified that a series of three White House protests against the “Don’t Ask, Don’t Tell” law on gays in the military, in which he and other activists were arrested at the White House fence, were based on the same principle used in the black civil rights movement for exercising a constitutional right of free speech.

“I believe that was a transformative moment,” he said of the White House protests.

George objected repeatedly to Choi’s dialogue on civil rights, saying it was not relevant to the case at hand. To the amazement of some courtroom observers, Facciola overruled her objections almost every time she raised them.

In her cross-examination of Choi, George pressed the former Army officer, West Point graduate and combat veteran in the Iraq war to respond to the charge that he disobeyed a lawful order to disperse from the White House fence.

Choi responded by citing a provision in U.S. military law pertaining to unlawful orders.

“If you are given an order that is unlawful or immoral, it is your duty to disobey that order,” he said.

Feldman and defense co-counsel Norman Kent told reporters covering the trial that Choi’s defense is based, in part, on the premise that prosecutors singled him out for a harsher prosecution when they charged him with violating a federal regulation pertaining to White House protests and demonstrations along the White House fence and sidewalk.

The federal regulation carries a penalty of six months in jail and a possible $5,000 fine. The two attorneys said people arrested in virtually all other White House demonstrations in recent memory – including Choi and other activists in similar protests in April and May of 2010 – were charged under a D.C. municipal ordinance they compare to a traffic violation that carries no prison sentence.

In his testimony on Tuesday, Choi said he believes prosecutors decided to invoke the far more harsh federal regulation against him in the Nov. 15, 2010 case, which he now faces at trial, because of his role as a gay former military officer who is “standing up for my beliefs.”

Choi stated in his testimony that thousands of people appeared to have violated the same regulation with which he was charged when they gathered at the White House earlier this year to celebrate President Barack Obama’s announcement that accused terrorist Osama bin Laden had been killed in a U.S. military operation in Pakistan.

Choi and his attorneys noted that dozens of the revelers that evening clung to the White House fence and did not move back and forth along the sidewalk, as required under the ordinance for a demonstration, when they cheered and expressed support for the president’s role in bin Laden’s capture and death.

By not attempting to disperse or arrest the throngs that congregated at the fence on that occasion while they arrested Choi and other protesters for challenging Obama on his handling of the “Don’t Ask, Don’t Tell” law shows that Choi was singled out for “vindictive” prosecution, Choi’s attorneys argue.

Choi and his attorneys also argue that the ordinance that Park Police used to arrest Choi violates the 1969 U.S. Supreme Court decision Shuttlesworth v. Birmingham. The decision overturned a Birmingham, Ala., law used by police there to arrest a civil rights protester in 1963 for demonstrating without a permit on grounds that the law was used to stifle his constitutional right to peacefully parade in a civil rights protest.

In anticipation of Choi’s vindictive prosecution defense, the government filed a motion last Sunday, one day before the trial opened, arguing that rules established by previous court decisions require a vindictive or “selective” prosecution defense to be introduced prior to the start of a trial. The 14-page motion argues that such a defense cannot be introduced during a trial and that Choi’s defense team failed to introduce the defense before the trial started.

Facciola did not rule on the motion at the start of the trial, saying he would do so as the trial progressed to first determine whether Choi’s attorneys would move forward with that defense.

When questioned by George during the trial on Wednesday, Facciola said he chose to reject the government motion on grounds that prior decisions by appeals courts requiring a vindictive or selective defense to be introduced prior to trial applied only to jury trials.

Choi’s case moved forward as a non-jury trial similar to other misdemeanor cases involving alleged violation of regulations pertaining to protest demonstrations at the White House.

George’s announcement about the writ of mandamus came after Facciola appeared to side with arguments by the defense that the government singled out Choi for a harsher prosecution for his Nov. 15, 2010 White House protest.

They attracted national media attention when Choi and 12 other LGBT activists handcuffed themselves to the White House fence. About 75 supporters who assembled across the street in Lafayette Park cheered and chanted slogans for LGBT equality while Park Police removed the handcuffs with bolt cutters and placed Choi and the other protesters under arrest.

In May of this year, the 12 others who were arrested agreed to a government offer to plead guilty to the charge in exchange for the government dismissing the case against them in six months if the activists don’t get arrested during that period for any reason, including a similar civil disobedience protest.

Choi told reporters at a news conference outside the federal courthouse Monday, after the trial recessed for the day, that he rejected the government’s plea bargain offer because he believes the law and regulation used to arrest him is unconstitutional.

“I believe there is no law that, in the history of this country, abridges freedom of speech, assembly, or the right to protest for redress of grievances, which were clear and made plain by all of the defendants,” he said.

George called five Park Police officers and a U.S. Park Ranger as government witnesses on Monday. Under questioning from George, they testified that they had no intention of singling out the protesters for their political beliefs or because of their sexual orientation.

In his cross-examination of the officers, Feldman questioned the validity of their decision to charge Choi under the federal regulation rather than the less serious D.C. municipal statute.

Feldman released an e-mail sent to the defense on Friday by George that extended another offer for Choi to plead guilty to the charge in exchange for the dismissal of the case by the government if Choi refrained from getting arrested for the next four months.

Feldman said Choi responded by saying he would accept the offer only on condition that the government issue a public apology to Choi in court on Monday for the arrest and prosecution against him. Feldman said the government rejected the conditions, prompting Choi to turn down the offer.

A spokesperson for the U.S. Attorney’s office said the office would have no comment on the case while the trial is in progress.

Park Police Lt. Robert Lachance, who led a team of officers assigned to arrest the protesters, testified that an assistant solicitor general at the Department of Interior, which has jurisdiction over the Park Police, advised him that the act of chaining oneself to the White House fence violated a federal regulation against actions that pose a threat to public safety, obstruct traffic, and potentially prevent “emergency responders” from carrying out their work.

At the news conference, Feldman said he planned to argue at the trial that Choi’s action at the White House fence did not violate the regulation and statute cited by the Park Police and by prosecutor George.

“It’s uncontroverted that Lt. Choi is no threat to the public safety whatsoever,” said Feldman. “Neither does he obstruct traffic, which is the second part of the regulation.”

Feldman said he would also argue that the regulation used by authorities to arrest Choi applies only to the sidewalk next to the White House fence. He noted that Choi and the other protesters were standing on a masonry ledge that rises above the sidewalk and serves as an anchor for the White House fence.

“It’s very clear that my client was never on the sidewalk,” Feldman said.  “He was on the masonry fence, which is above the sidewalk. And the warnings from Lt. Lachance said, ‘Get off the sidewalk.’ How can you get off the sidewalk if you were never on the sidewalk?”

He said he would also argue that Choi was unable to hear the warning that Lachance made to the protesters through a loudspeaker brought to the scene by Park Police. Lachance testified that he read a scripted message three times ordering the protesters to leave the fence and warning them they would be arrested if they did not comply with that order.

Feldman said Lachance’s warnings were drowned out by loud shouts and chants by Choi and the other 12 protesters handcuffed to the fence as well as by dozens of other protesters assembled in Lafayette Park.

The chants and shouts could be heard in a video recording of the protest that George played in the courtroom as part of a prosecution exhibit for the trial.

“There’s a cacophony of noise all around, and how can you possibly hear Lt. Lachance’s warnings to go away?” Feldman said at the news conference.

Gay activist and former military Capt. Jim Pietrangelo II testified on Tuesday as a defense witness, saying he observed first-hand what he believes were attempts by Park Police and government officials overseeing the police action an effort to single Choi out for a harsher charge based on Choi’s statutes as a gay former military officer and advocate for gays in the military.

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Pride flags vandalized, stolen in Loudoun County town

‘Bigoted efforts to terrorize members of our community will not stand’

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Vandals destroyed or stole several Pride flags that had been displayed at homes in Lovettsville, Va. (Screen capture via WUSA9))

Vandals this week destroyed or stole Pride flags that Lovettsville residents had displayed on their homes.

Calvin Woehrie told WUSA the vandals used a blade to slash the Pride flag that was hanging from his house. The D.C. television station reported the vandals also targeted Woehrie’s neighbors who are a lesbian couple with four children.

The Loudoun County’s Sheriff’s Office said the vandals damaged five Pride flags from three homes and they stole two more. A spokesperson for the Loudoun County’s Sheriff’s Office told WUSA the vandalism is being investigated as a possible hate crime.

“I wanted to address events that happened over the weekend, that are deplorable and devastating to the entire community,” said Lovettsville Mayor Nate Fontaine in a letter he sent to town residents on June 16. “Over the weekend, there was destruction of property that specifically targeted our LGBTQ community. To make this even more heinous is that the destruction of property was done during Pride Month. To have property destroyed targeting members of our community is horrible and can be frightening for those targeted.” 

“For the individuals who committed these crimes, know that your bigoted efforts to terrorize members of our community will not stand,” added Fontaine. “We are working closely with the Loudoun County Sheriff’s Office and this has also been added as an agenda item for our June 24th Council meeting.”

Glenn Youngkin, the Republican nominee to succeed Virginia Gov. Ralph Northam, on Saturday described the vandalism as “absolutely unacceptable.”

“Whether someone is voicing an opinion or flying a flag, as Virginians — and as human beings — we must be respectful of one another,” wrote Youngkin in a Facebook post.

“Politicians always seem to be pitting neighbor against neighbor, but I am committed to bringing people together around our shared values, like treating others the same way you want to be treated,” he added. “We must all do better by respecting others’ right to live their lives freely, without being targeted because of who they are.”

WUSA reported Lovettsville residents bought Pride flags to replace the ones that had been vandalized and stolen.

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Transgender man murdered in Va.

EJ Boykin was shot outside Lynchburg store on June 14

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EJ Boykin (Photo courtesy of Facebook)

A transgender man was murdered in Lynchburg, Va., on June 14.

The News and Advance, a local newspaper, reported EJ Boykin, who was also known as Novaa Watson, was shot outside a Family Dollar store on the city’s Fort Avenue at around 6 p.m. Boykin passed away at Lynchburg General Hospital a short time later.

A spokesperson for the Lynchburg Police Department told the News and Advance the shooting may have been the result of a domestic dispute. Authorities added there is no evidence to currently suggest the shooting was a hate crime based on Boykin’s gender identity.

Pittsburgh Lesbian Correspondents reported Boykin was born and raised in Baltimore and was a student at Morgan State University. The blog said Boykin celebrated his 23rd Birthday on June 10, four days before his murder.

Tori Cooper, the director of community engagement for the Human Rights Campaign’s Transgender Justice Initiative, in a statement notes Boykin is the fifth trans man reported killed in 2021. HRC notes at least 29 trans or gender non-conforming people are known to have been murdered so far this year.

“The level of fatal violence we’ve recorded this year is higher than we’ve ever seen,” said Cooper. “All of these individuals deserved to live. We must strike at the roots of racism and transphobia, and continue to work toward justice and equality for trans and gender non-conforming people.”

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Comings & Goings

Jarvis lands lead consultant role at Meridian

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Ted Jarvis

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at: [email protected].

The Comings & Goings column also invites LGBTQ+ college students to share their successes with us. If you have been elected to a student government position, gotten an exciting internship, or are graduating and beginning your career with a great job, let us know so we can share your success.

Congratulations to Ted Jarvis on his new position as Lead Consultant with Meridian Compensation Partners, in D.C. He will work on executive compensation, governance research and development. When asked for a response to news of his new role, Jarvis told this story: “I was on the prowl for a new job, I contacted the CEO of Meridian, who worked closely with me during our years at Towers Perrin. After half an hour on the phone, he asked: ‘Send me a list of things you really like to do.’ I followed up with a list of activities that continually engage my interest. Within a few days he mailed me a job description that reiterated my list almost word-for-word. I feel truly blessed to have a job so aligned with what I enjoy doing. This is going to be great.”

Prior to working for Meridian, Jarvis worked as Managing Director with Main Data Group in D.C. and Wilton Manors, Fla. He has also worked as Global Director of Executive Compensation Data, Research & Publications, Mercer, in D.C.; principal with Willis Towers Watson; and as a research consultant with McKinsey & Company. Jarvis is a member of the Lotos Club (New York); a benefactor at Drew University (Morristown, N.J.). He funded two undergraduate prizes (Wettstein Drama Prize; Norton Wettstein and Jane Brown Memorial Prize for Outstanding Academic Achievement); a benefactor, Woodmere Art Museum (Philadelphia): funded William Joseph Coverley-Smith Prize, awarded annually at the Juried Art Competition; and a benefactor, St. Thomas’s Episcopal Church (Rochester, N.Y.).

Jarvis earned his MBA from The University of Chicago, Booth School of Business; his bachelor’s (cum laude); his Ph.D. (ABD) major in music history, literature and theory from NYU. He earned a Fulbright Scholarship to the University of Vienna.

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