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Judge rules against Choi in ‘vindictive’ prosecution claim

Gay activist on trial for arrest over White House protest

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A federal judge ruled on Oct. 11 that gay former Army Lt. Dan Choi cannot argue in his ongoing trial that he was targeted for “selective” or “vindictive” prosecution following his arrest last year for chaining himself to the White House fence in a protest against “Don’t Ask, Don’t Tell.”

In a 17-page decision, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia overturned an earlier ruling by Magistrate Judge John Facciola that allowed Choi’s lawyers to pursue allegations of selective or vindictive prosecution in the trial, which began Aug. 29.

Lamberth’s decision, among other things, granted a petition by prosecutors for a Writ of Mandamus, a formal and unusual request challenging a ruling of a trial judge by appealing to a higher court or to another judge with greater authority.

Under Lamberth’s decision, Facciola is prohibited from “considering selective or vindictive prosecution as a defense to the merits of the prosecution,” prohibited from “allowing evidence as to either claim” and barred from entertaining any motion filed by Choi to dismiss the case based on selective or vindictive prosecution.

Facciola is presiding over a non-jury trial in which Choi is being prosecuted for a misdemeanor charge of disobeying a lawful police order to disperse from the White House fence. Although the prohibition against Choi’s use of a defense based on selective or vindictive prosecution is a blow to the defense, one of his attorneys, Norman Kent, said Sunday that the defense will move forward on other grounds and that Choi’s defense team remains confident that Choi will be found not guilty.

Choi was the only one of a group of protesters arrested during the November 2010 protest that did not agree to plead guilty to the charge in exchange for having the case dismissed if they weren’t arrested again at the White House within a four-month period.

Through his attorneys, Choi has argued that he had a constitutional right to handcuff himself to the White House fence. The attorneys also have contested the government’s case on a technicality, saying police ordered Choi to disperse from the sidewalk. They note that Choi was standing on an elevated ledge on which the White House fence is attached, not the sidewalk itself and thus Choi was not legally bound to obey the police order.

Lamberth said in his decision that prosecutors were correct in arguing that under longstanding court rules of evidence, a case alleging selective or vindictive prosecution must be initiated in a pre-trial motion, not during the trial itself.

Choi’s attorneys — Kent of Fort Lauderdale, Fla., and Robert Feldman of New York — have argued that they lacked sufficient evidence of selective or vindictive prosecution prior to the start of the trial. The two said persuasive evidence of a selective-vindictive prosecution only emerged during their cross-examination of government witnesses during the trial itself.

Following strong opposition by the prosecutor in the case, Facciola ruled on Aug. 31 that preliminary evidence existed to show a selective or vindictive prosecution could have occurred against Choi. Facciola ruled that Choi’s lawyers could go forward with using selective-vindictive enforcement as a defense.

Feldman and Kent argued that Choi’s decision to handcuff himself to the White House fence in November 2010 was identical to two prior White House protests in which he and others handcuffed themselves to the fence. They noted that while prosecutors charged Choi in the earlier protests under a local municipal statute that carried no jail time, in the November 2010 protests, they charged Choi under a more stringent federal statute that includes a possible sentence of six months in jail.

Feldman and Kent alleged that prosecutors chose the more stringent statute in the November case because Choi’s protests were embarrassing the Obama administration over the gays in the military issue. They said the harsher prosecution was in retaliation for Choi’s political message that the White House wasn’t moving fast enough to repeal “Don’t Ask, Don’t Tell.”

Assistant U.S. Attorney Angela George, the lead prosecutor in the case, disputed that assertion, saying the government prosecuted Choi for refusing to obey a lawful order by police to move away from the White House fence. She said Choi’s political message was irrelevant to the government’s case and had no role in the decision to prosecute him.

In court briefs, George said prosecutors charged Choi under a more stringent law in the November case because it was the third time in less than a year that he had been arrested for the same illegal conduct and the government has legal discretion to select different statutes or regulations under which to make an arrest in such a case.

Facciola put the trial on hold on Aug. 31 after George said the government would take the unusual step of challenging his ruling through a Petition for a Writ of Mandamus. Under U.S. District Court rules, the court’s chief judge rules on such a petition.

Kent told the Blade on Oct. 16 that following consultation with Choi he and Feldman are strongly considering appealing Lamberth’s decision to the U.S. Court of Appeals for D.C. He said Choi’s legal team would make a final decision on whether to file an appeal by Oct. 20, a deadline set by Judge Facciola for the two sides to inform the court whether an appeal will be made or whether the trial will resume.

Choi enjoyed widespread support from LGBT activists when he worked with the LGBT direct action group GetEqual last year in a series of non-violent civil disobedience protests at the White House and other locations to pressure Congress and the Obama administration to push harder for repeal of “Don’t Ask, Don’t Tell.”

But since Obama signed legislation approved by Congress repealing “Don’t Ask, Don’t Tell” and since the repeal took effect on Sept. 20, some activists have questioned the rationale for Choi’s decision to demand a trial in the current case. Some have asked why Choi is contesting the type of civil disobedience arrest that most other protesters acknowledge involves breaking a law and choose to resolve by paying a small fine or agreeing to a plea offer like the one prosecutors made to Choi.

Gay rights attorney and television commentator Mark Levine called non-violent civil disobedience arrests an important and historic tradition in the U.S. civil rights movement made famous by Martin Luther King Jr. in his efforts to end racial discrimination. Levine said the benefit of drawing public attention to an injustice comes from the arrest itself, “not a long drawn out trial that has the potential for wasting court resources that would be better used for something else.”

Choi has said he chose to take his case to trial because he believes his action handcuffing himself to the White House fence is protected by his First Amendment right to free speech and should not be considered an illegal act.

 

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Rehoboth Beach

A busy July 4 weekend in Rehoboth Beach

Del Shores, Lady Bunny, Pamala Stanley and more set to entertain

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Magnolia Applebottom, who performs regularly at Diego’s, is among Rehoboth’s drag stars set to take the stage over the July 4 holiday weekend and beyond. (Washington Blade photo by Daniel Truitt)

As July 4 approaches, another Rehoboth Beach summer is abuzz with possibilities for in-person fun ranging from dinner downtown to live performances featuring local artists.

For starters, stop for dinner at Red, White & Basil. This brand-new restaurant was scheduled open its doors to the Rehoboth community on June 29 after making the move from D.C. to Route 1, where it can be found south of Coldwell Banker and just north of Big Fish. Mark Hunker and Jeff McCracken of Eden and JAM Bistro and Coho’s Market & Grill are behind the new venture.

Diego’s Bar & Nightclub (37298 Rehoboth Ave. Ext.) is entering the July 4 weekend strong. Kick off the new month with a happy hour Friday from 4-8 p.m. On Saturday, don’t miss a Splash Party from 5-7 p.m. or an Independance Party with DJ Steven J from 9:30 p.m. to 1:30 a.m. all at the same venue.

Come back to the bar on Sunday from 4-8 p.m. for a happy hour followed by a 9:30 p.m. to 1:30 a.m. Studio 54 Party with DJ Jeff Harrison. Round out your weekend at Diego’s with the show-stopping DJ during the bar’s July 4 Independence Day Dance from 9:30 p.m. to 1:30 a.m.

Witness the wonder of local legends Kristina Kelly and Mona Lotts as they perform in a special July 4 drag brunch at The Pines, with doors opening at 56 Baltimore Ave. at 11:15 a.m. Tickets are $15 and can be purchased online. Come back that evening for the Flaming Pianos show featuring local favorites John Flynn and Matthew Kenworthy from 6-9 p.m.

Also at the Pines is Furst Friday happy hour with the Rehoboth Beach Bears on July 1 from 6-8 p.m. That same night, the legendary Del Shores performs “The Tea is Spilled” at 7:30 and 9:30 p.m. 

Across the street at Aqua, don’t miss FireWerk with DJ Chord on Friday at 9 p.m.

The Blue Moon (35 Baltimore Ave.) has a robust lineup of entertainment planned, including Show Tunes Sunday on July 3 and Lady Bunny performing on July 4 from 9:30-11 p.m. Tickets are $44. Also at the Moon, don’t miss the talented New York City pianist Nate Buccieri, Monday-Thursday, 6-8:30 p.m.

Freddie’s Beach Bar continues its first summer season with karaoke on Thursdays and Sundays at 8 p.m., Drag Follies show Fridays at 9 p.m., and a DJ dance party on Saturdays at 8 p.m. Freddie’s also hosts the beloved Pamala Stanley on Sunday, July 3 from 6-9 p.m.

Stick around until Friday, July 8 and you can watch local drag star Magnolia Applebottom grace the stage of the Milton Theatre, located at 110 Union St. in Milton, Del. Doors open at 7 p.m., and tickets can be purchased for $20 online.

As visitors from far and wide eagerly await a Rehoboth Beach summer with fewer restrictions, these events will be sure to make everyone’s Independence Day this year is nothing short of spectacular.

Magnolia Applebottom (Washington Blade photo by Daniel Truitt)
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Maryland

Gay, lesbian incumbents, candidates on Md. county ballots

State’s primary is on July 19

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From left: Prince George's County Public Schools Board of Education member Pamela Boozer-Strother, Montgomery County Circuit Court Clerk Karen Bushell, Prince George's County Council candidate Krystal Oriadha (Courtesy photos)

The Washington Blade this week spoke with five openly gay and lesbian candidates who are either running for office or are seeking re-election in Montgomery, Prince George’s and Howard Counties.

Montgomery County Councilman Evan Glass

Montgomery County Councilman Evan Glass. (Photo courtesy of Evan Glass)

Evan Glass serves as the vice president of the Montgomery County Council and as its first openly LGBTQ member. Previously working for 12 years as a CNN journalist, he was first elected in 2018.

Glass told the Blade that running to continue as a member of the Council was rooted in the change that has been able to be made thus far.

“When I first raised the Pride flag in an official manner in 2019, I received a lot of pushback and hate,” Glass said. “But we persisted and have continued expanding Pride events and celebrating our beautiful diversity.”

Since his election, Glass’ initiatives in Montgomery County have included a host of local legislation aimed at promoting and furthering social justice and LGBTQ equality in the county. 

Along with measures, such as the county’s Housing Justice Act and Oversight and Small Business Investment Act, Glass’ efforts led to the Council to pass its Pay Equity Act designed close the gender wage gap by modifying how the county determines salaries for employees. He also worked to spearhead the passage of the county’s LGBTQ Bill of Rights, which expanded its anti-discrimination code to include gender expression and HIV status and ban discrimination in areas such as healthcare facilities, nursing homes and personal care facilities.

As he makes his bid for reelection later this summer, Glass said that he hopes to expand on the accomplishments he has been able to make so far.

“I’m proud of my work to create more affordable housing, to make our buses free for all youth, and to keep our residents healthy and safe during the pandemic,” Glass said. “These efforts haven’t been easy, but they are critical to fostering a more fair and equitable community.”

Montgomery County Circuit Court Clerk Karen Bushell

Montgomery County Circuit Court Karen Bushell (Photo courtesy of Karen Bushell)

Karen Bushell grew up in the Midwest before moving to the D.C. area in 1985, where she met her wife in 1995. Bushell had four children and her wife had two children when they met, and according to Bushell, “we had a very, very busy house.” 

Bushell started serving in the judiciary in 2001 — as an HR associate, and then as a judicial assistant for many years. When Barbara Michael retired as Clerk of the Court in April 2021, Bushell was appointed to the position, making her the first openly LGBTQ person to hold it. 

The Clerk of the Court serves as an independent record keeper of what happens in the courts, and Bushell described the clerk’s role as primarily that of a public servant. 

“I love my job; I love being part of the judiciary. Being a public servant, it’s always good to know at the end of the day, that you help somebody,” Bushell said. “I think being a public servant is something that is important to me, so that is one of the reasons that that I’m running.”

Prince George’s County Public Schools Board of Education member Pamela Boozer-Strother

Prince George’s County Public Schools Board of Education member Pamela Boozer-Strother (Photo courtesy of Pamela Boozer-Strother)

Pamela Boozer-Strother first became involved in LGBTQ and reproductive rights advocacy in the late 1980s as part of what was then called the National Lesbian and Gay Journalists Association. During the decade she spent working with NLGJA; she worked towards inclusive workplace policies, fair and accurate news coverage of LGBTQ issues, and domestic partner benefits. 

After living in Adams Morgan for years, Boozer-Strother moved to Prince George’s County with her spouse Margaret, where they adopted a child and built a life together. Boozer-Strother first became involved in the school system when her son started attending public school in Prince George’s County, and in 2018 she ran for the Board of Education and won. 

“I had an opportunity to make a difference by being visible, and finding other gay, lesbian, bisexual and transgender families and staff — and ultimately, students — and helping to build that network of support,” Boozer-Strother said. “It’s taken some time; I ran for the board in 2018 as an out candidate and I won, and I am thrilled to live in a community that saw that as an asset.”

Boozer-Strother has worked extensively on school construction, educational equity policy, LGBTQ-inclusive curricula and the board’s climate change action plan.

“Of course, I focused in on the relevance of my representation and my skills and background that I could bring to [my platform.] But really, I got into this because of school construction,” Boozer-Strother said. “I’m really proud to say that, as of today, seven projects that serve District 3 students are fully funded.”

Prince George’s County Council candidate Krystal Oriadha

Krystal Oriadha (Photo courtesy of Krystal Oriadha)

Krystal Oriadha studied business at Howard University before getting an MBA and working at Hewlitt-Packard. After a few years with HP, Oriadha moved back to the DMV area, where she said that “I wanted to use my skill set to help people and make an impact.” 

Oriadha has now been a community organizer and advocate for more than 12 years — she worked with the U.S. Department of Health and Human Services on human trafficking prevention, reproductive healthcare, domestic violence campaigns and tribal nations issues for about four years before she made her first run for office, for the same seat for which she is running now. Although Oriadha lost that election by 30 votes, she became the new council member’s policy director, which gave her the chance to work on making legislation as a staffer.

“I think I learned that I wanted to be the principal even more, because they had the ability to make deals, cancel what I thought was really good legislation,” Oriadha said. “It’s really different when you’re the person that gets the make that last call — that’s the difference between having a seat at the table and being outside of the room when decisions are being made.”

Oriadha currently serves as the executive director of PG Change Makers, a local nonprofit she co-founded after returning to Prince George’s County to do community work in the aftermath of George Floyd’s murder. Although she was not initially planning to run for office again, Oriadha said that she is doing so at the request of her community.

“I was not planning on running again because it is a lot of work and I never really cared about being elected, but the community is asking me to, so I decided to go ahead and give it another try,” Oriadha said.

Oriadha said that proudly representing all aspects of her identity is a crucial part of her campaign.

“When I first ran, there was a lot of talk about how not to talk about the LGBTQ+ part, because I’m straight presenting. And for me, what was so important is that I made it very clear who I am, and that I didn’t shy away or hide that part of myself, because to me, you’re not breaking the [glass] ceiling if people don’t even know the ceiling existed. I think that we’ve never had an openly elected LGBTQ+ person sit on our County Council before,” Oriadha said.

“I think what this will show is that you can run and be yourself and it won’t cost you anything. I think that’s what is so important about this election.”

Howard County Register of Wills Byron Macfarlane

Byron Macfarlane, gay news, Washington Blade
Howard County Register of Wills Byron Macfarlane (Washington Blade photo by Drew Brown)

Howard County Register of Wills Byron Macfarlane has served in the position since 2010 and was the first openly LGBTQ person elected in Howard County.

Along with his involvement in a plethora of state and local groups and organizations and being admitted to the state bar association, Macfarlane gained experience working for multiple prominent lawyers and politicians including County Councilman Guy Guzzone, Circuit Court Judge Richard Bernhardt, state Sen. Edward Kasemeyer and the late-U.S. Sen. Ted Kennedy (D-Mass.)

During his tenure in office, Macfarlane has made supporting the LGBTQ community an integral facet of his identity as a public official and a fellow citizen. 

“Queer kids see the hate coming from the dark corners of our community,” Macfarlane wrote on Twitter. “They need to hear from us — from you — that we love and support every one of them.”

Since being elected, Macfarlane has overseen a number of reforms implemented in the Register’s office, including modernization of its technological aspects and a cut on taxpayer expenditures for antiquated procedures. Modernizing the Register’s office and leading on reform, while also being receptive to his constituents, Macfarlane has said, have been some of his top priorities.

“I’ve proven myself as a reliable and responsive figure in our local government, that I’ve been extremely effective delivering meaningful reform, and that now more than ever our community needs steady, forward-looking leadership they can trust,” Macfarlane told the Blade. “I’m running for re-election because representation matters, because I want to continue serving the public with professionalism, compassion, and fairness, and because I want to continue pushing reforms to make probate faster, fairer and less expensive for Marylanders.”

Editor’s note: Somerset Mayor Jeffrey Slavin, who is openly gay, won re-election on May 10.

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West Virginia

Eastern Panhandle Pride brings celebration to rural W.Va.

‘Martinsburg is an inclusive city’

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A scene from Eastern Panhandle Pride on June 4. (Washington Blade photo by Michael Key)

Smiling faces spilled into downtown Martinsburg, W.Va., on June 4, welcomed by booths swathed in rainbow colors lining the road.

The historic sight marked the first time that Martinsburg welcomed an official Pride celebration to its streets — but not all residents viewed the new event favorably. As the celebration came into full swing, two protesters marched straight to its center, carrying a sign with homophobic slurs and a seven-foot cross.

The protest quickly turned the heads of passersby. As more and more people approached the demonstration, a group of more than 30 attendees formed a circle around the protesters, separating them from the event. Some joined hands and, attempting to drown out the protesters’ hatred, chanted: “Love wins!”

When Joe Merceruio began working at Eastern Panhandle Pride nine years ago, he set out to help unite the community of West Virginia’s easternmost region, working with fellow organizers to create Pride celebrations in a Shepherdstown park.

But when assuming the role of president in 2019, he never anticipated that just three years later, the organization would be invited by the mayor of the panhandle’s largest city to throw a celebration in the Berkeley County, W.Va. seat. “We’ve never had a city reach out to us and ask us to do Pride, it was always the other way around,” he explained.

Born and raised in Martinsburg, Merceruio was moved by the way his community came together at this year’s Pride celebration. After two years of restricted celebrations due to public health concerns, seeing so many people celebrate in person, including many allies, was deeply meaningful, he noted.

Beth Roemer, who helped organize this year’s festivities, said she was especially proud of the way her community peacefully organized against the protesters — especially those young people she credited with leading the charge. The group was “surrounding them in a very passive way so that they couldn’t do any more damage,” she recalled.

Participating in Pride each year has shown Merceruio and Roemer alike the ways their community is changing, fueled by advocacy from LGBTQ individuals and allies within it.

Berkeley County is known for being more conservative, which meant that Roemer “wasn’t sure” exactly “how far we had come” in accepting the LGBTQ community. But her hopes for inclusivity were quickly realized when she saw how many people supported this year’s celebration.

“We had a local business downtown reach out to Joe and I, and he said he just never believed in a million years that we could have Pride downtown,” she added. “He was super happy.”

According to Merceruio, Pride offers an opportunity for community building especially important to rural West Virginians.

“I think you can let the stereotype of West Virginia interfere with the reality of the West Virginia that’s really out there,” he explained. “There is ignorance, there is hatred, but there’s also a tremendous amount of love and support.”

“It really gives people who want a community a chance to see that there is a community in Martinsburg,” Roemer said. At this year’s celebration, Roemer added that she met an 18-year-old woman who was able to attend Pride for the first time after her parents did not support her desire to go growing up. “She goes, ‘Now I have a community,’” Roemer recalled.

As an organization that serves a primarily rural region, Eastern Panhandle Pride operates differently from many Pride organizations in major cities. Merceruio noted that there are some challenges associated with organizing Pride in a rural area, like receiving less attention from sponsors and having to work harder to find and provide resources.

Still, Merceruio said rural Pride celebrations have a certain charm that major Pride celebrations cannot always replicate.

“I have people that have texted me and said, ‘We’re so excited to do this, our 11-year-old daughter has been waiting for this,’” he explained. “I think you get more of a family atmosphere in rural areas.”

Some of Merceruio’s favorite moments from this year’s Pride included this type of “personal interaction” with community members, he added. “I guess that’s a bit more of what you get from a smaller town for Pride.”

At this year’s Pride, Martinsburg Mayor Kevin Knowles spoke directly to attendees, welcoming the celebration to the city’s streets and reading a proclamation officially recognizing June 2022 as Pride month for the city.

“Martinsburg is an inclusive city. We include everybody, no matter where they come from or what they do,” Knowles said at the event. “The city of Martinsburg is moving forward.”

In the near future, Eastern Panhandle Pride hopes to continue to offer programming for the local LGBTQ community and its allies, and to further support community needs through advocacy. For Merceruio, this work is an important part of giving back to the place he calls home.

“I love being from West Virginia. Our culture and our society and our neighbors,” Merceruio said. “It’s got its problems, but it is awesome.”

See photos from the event here!

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