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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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Baltimore

Baltimore Pride event disrupted by possible chemical agent, causing panic and injuries

Incident caused a stampede

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This year’s Pride Parade and Festival was expected to attract 100,000 people. (Photo by Kaitlin Newman/the Baltimore Banner)

BY JOHN-JOHN WILLIAMS IV and BRENNA SMITH | A possible chemical agent was released in front of the main stage at the Baltimore Pride Parade and Block Party on Saturday night, causing a stampede.

The incident occurred around 7 p.m. and police did not release the chemical agent, according to a spokesperson. The main stage for the event was located near North Avenue and Charles Street.

The rest of this article can be found on the Baltimore Banner’s website.

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District of Columbia

Accused drug dealer charged with fentanyl distribution leading to deaths of two D.C. gay men

June 13 indictment links previously arrested suspect to deaths

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(Bigstock photo)

The Office of the U.S. Attorney for D.C. has announced that federal prosecutors on June 13 obtained an indictment against one of two D.C. brothers previously charged with multiple counts of illegal drug distribution that now charges him with “distributing cocaine and fentanyl” on Dec. 26, 2023, that resulted in the deaths of D.C. gay men Brandon Roman and Robert “Robbie” Barletta.

In a June 13 press release, the U.S. Attorney’s Office said Jevaughn ‘Ledo’ Mark, 32, is charged in a new “secondary superseding indictment” linked to the Roman and Barletta deaths. It says he and his brother, Angelo Mark, 30, “previously were charged on April 9 in a 17-count superseding indictment for participating in a conspiracy that distributed large amounts of fentanyl and cocaine in the metropolitan area.”

The press release says Jevaughn Mark is currently being held without bond on charges that include eight counts of unlawful distribution of fentanyl, cocaine, and heroin and distributing 40 grams or more of fentanyl between Jan. 10, 2024, and March 13, 2024. According to the press release, the charges were based on six illegal drug purchases from Jevaughn Mark by undercover U.S. Drug Enforcement Administration and undercover D.C. police officers.

Court records show that Angelo Mark was charged in a criminal complaint on March 22 with multiple counts of conspiracy to distribute narcotics and is also being held without bond.

D.C. police and Fire and Emergency Medical Services reports show that Roman, 38, a prominent D.C. attorney and LGBTQ rights advocate, and Barletta, 28, a historic preservation expert and home renovation business owner, were found unconscious when police and emergency medical personnel responded to a 911 call and arrived at Barletta’s home on Dec. 27. The reports show that Roman was declared deceased at the scene and Barletta was taken to Washington Hospital Center where he died on Dec. 29.

A police spokesperson told the Washington  Blade in February that police were investigating the Roman and Barletta deaths, but investigators had to wait for the D.C. Medical Examiner’s official determination of the cause and manner of death before the investigation could fully proceed.

Both men were patrons at D.C. gay bars and their passing prompted many in the LGBTQ community to call for stepped up prevention services related to drug overdose cases, even though the cause and manner of death for the two men was not officially determined until early April.

In April, the D.C. Office of the Chief Medical Examiner disclosed that the cause of death for both men was an accidental consumption of several drugs that created a fatal “toxic” effect. The Medical Examiner’s office said Barletta’s death was linked to the consumption of at least four different drugs and Roman’s death was caused by the “combined toxic effect” of six drugs. The Medical Examiner’s office disclosed that cocaine and fentanyl were among the drugs found in the bodies of both men. And for both men, the manner of death was listed as “Accident/Intoxication.”

When the cause and manner of death were disclosed by the Medical Examiner, D.C. police spokesperson Tom Lynch said the police investigation into the deaths remained open but said, “There are no updates on the investigation that we are ready to release to the public.”

But the Medical Examiner’s findings prompted Johnny Bailey, the community outreach coordinator for HIPS D.C., an LGBTQ supportive organization that provides services and support for those who use recreational drugs, to say he strongly believed that Barletta and Roman did not intentionally consume some of the drugs found in their system.

“I’m going to say I do believe this was a poisoning,” Bailey told the Blade. “I think it is unfair to call some things an overdose because an overdose is when you do too much of a drug and you die from that drug,” he said. “This is like if you have a few glasses of wine every night and someone puts arsenic in your wine, no one would be like, ‘oh, they drank themselves to death.’ They were poisoned. And that’s what I think is happening here,” he said in referring to Barletta and Roman.

In announcing the new charges against Jevaughn Mark that link him to Barletta and Roman’s deaths, the U.S. Attorney’s press release discloses that he supplied fentanyl in the drugs he sold unknowingly to the undercover DEA and D.C. police officers when one of the officers, posing as a drug buyer, did not ask for fentanyl.

“In each instance, the DEA/MPD agents requested to buy ‘Special K’ or Ketamine from Jevaughn Mark,” the press release says. “In every instance, Jevaughn Mark supplied a mixture of fentanyl and other substances, including heroin, but not ketamine,” it says.

The release says that after the earlier indictment against Jevaughn Mark was issued, law enforcement agents conducted a search of his Southeast D.C. home and “recovered two firearms, cocaine, fentanyl, about $38,000 in cash, body armor vests, and drug trafficking paraphernalia.” It says on that same day authorities executed another search for a second residence linked to Jevaughn Mark, where they located a bedroom used by his brother Angelo Mark.

“From Angelo Mark’s bedroom, law enforcement recovered seven firearms, 900 rounds of ammunition, dozens of pills, cocaine, fentanyl, drug trafficking paraphernalia, and about $50,000 in cash,” the press release says, adding, “Based on the evidence, both brothers were indicted in the first superseding indictment.” 

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Delaware

Delmarva Pride to feature drag, dancing, and more this weekend

Easton and Cambridge to host events

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A scene from Delmarva Pride. (Washington Blade file photo by Michael Key)

The Delmarva Peninsula will hold its annual Pride celebration this weekend, including drag shows, a festival, and much more. 

The Delmarva Pride Center will put on the annual Pride celebration starting on Friday, June 14, and it will go until Sunday to celebrate queer love and acceptance in Delmarva.  

The weekend kicks off on Friday with a free legal clinic in partnership with FreeState Justice at the Academy Art Museum, 106 South St., Easton, Md. Free legal services including name and gender marker changes, criminal record expungements, and peace and protection orders are just some of the services being offered. For more information visit freestate-justice.org.

Then on Friday night, the third annual Pride Drag Show will be at the Avalon Theatre, 40 E Dover St., in Easton. Bring your cash as four drag queens and host Miranda Bryant put on the fundraising show, where 100% of ticket sales go to the Delmarva Pride Center. Doors open at 6:30 p.m. and performance begins at 7 p.m. For tickets visit avalonfoundation.org.

On Saturday there will be the Pride festival from 11 a.m.-4 p.m. at  S. Harrison and E. Dover Street, in Easton. This free community festival will include vendors, live performances, and more. 

Saturday night the party gets going as Delmarva Pride will host its 2024 Pride Dance. There will be a DJ and drinks available for purchase. This event is for 18 and up and will include a cash bar for anyone 21 and up. No tickets are required. 

To round out your Pride weekend, on Sunday the Delmarva Pride Brunch will be held at ArtBar 2.0, 420b Race St. in Cambridge, Md. Tickets include food, access to the mimosa bar, and a drag performance. Tickets are available here

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