September 1, 2011 at 2:42 pm EDT | by Lou Chibbaro Jr.
Choi trial halted after challenge to judge’s ruling
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.

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

  • Who’s paying –CENSORED–

    • This “media whore” is standing up for all of our rights… you should be grateful that he’s willing to do this for us instead of being the nasty slouch that you appear to be.

    • Are you for real? Maybe you’re a heterosexual bigot that hates gays. Whether you like Choi or not, he has a constitutional right to protest–it’s part of the Constitution. And, he’s arguing for equal treatment for gays. What have you done lately for equal rights?

      • and all the other folks who were arrested with him settled their cases out of court. –CENSORED–, or is Choi just trying to get more attention for himself, which is why (and because of his showmanship at the Netroots conference even Queerty had an article titled “Bad Behavior. Dan Choi at Netroots Nation Commits Conduct Unbecomming an Officer” June 17, 2011) –CENSORED–

        • He’s not a media whore. As for the others settling their cases, I wonder about their reasons for doing that. On the one hand, they feel like standing up for a principle–that DADT was unconstitutional. Yet, when slapped with fines or potential jail sentences for protesting (also something we have the right to do), they cave in.

          DADT is as much unconstitutional as a police officer telling someone they don’t have the right to protest on government, tax-payer owned property. I’m frankly getting sick and tired of seeing protestors ARRESTED! It’s becoming all too frequent for the police to respond to protestors by arresting them despite the fact we have the right to publicly air our grievances.

          • Protest in accordance with governing law, rules and regulations. Just because it’s about DADT doesn’t give anyone license to act contrary to law. If it did, we’d have anarchy.

          • I think you missed the fact the purpose of handcuffing themselves to the White House fence was to get arrested. Getting arrested is a form of protest. It gets you in the news. Actress Daryl Hannah was arrested the other day.

  • Lt. Choi’s attorneys are working without pay, happy that their community is being represented by a person of Choi’s character.

  • If Westboro Baptist has the right to protest military funerals with signs that say “Thank God for dead soldiers,” Dan Choi has a right to protest these laws that treat us unfairly. AND, this RIGHT is enshrined in the First Amendment! My God, do these conservatives read the Constitution?

    • He does have a right, but in accordance with law, rules, and regulations. It doens’t matter what he was protesting about – if he did so in a manner contrary to governing statutes, he’s guilty.

  • I have to agree with laurelboy2 this time. If you ever been to the White House you will notice several peaceful protests happening. You have that right to make a sign and protest in any public space you want. That is our right as Americans. Choi does not have a right to handcuff himself to a security fence.

    If anyone thinks Dan Choi was instrumental in overturning DADT then you need to read the facts.

  • Dan Choi has a history of depression and mental illness. Anyone who supports him with this court case is enabling his delusions of grandeur. It is clear from his testimony that Dan Choi is Charles Guiteau crazy.

  • Frankly Syd, you and laurelboy2 should both be ashamed of yourselves. Your snide remarks and non-too-veiled insinuations are petty and pathetic, typical of a Web site troll. Dan Choi’s battle with PTSD is the same as that of thousands of other veterans, and your pathetic smears insult all of them. Of the 9 men in my family, over the past three generations, who served in the U.S. military, four came home with PTSD. One took many years to recover from it and to restore the man we knew before the military. Another still suffers, 8 years later. Of the other two, one became an alcoholic and drank himself to death – the other committed suicide. I thank the Gods that Lt. Choi had the opportunity to seek the help he needed, and that the V.A. had the services available – and damn you both for being such pathetic, jealous trolls.

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