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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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District of Columbia

Three of five LGBTQ candidates win race for DNC delegate from D.C.

32 candidates competed for 13 elected seats in party caucus

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John Fanning finished in first place in the race for DNC delegate. (Photo courtesy of Fanning)

Three out of five known LGBTQ candidates running for election as delegates from D.C. to the Democratic National Convention won their races at an April 20 Democratic Party caucus election held at D.C.’s Walter Washington Convention Center.

Ward 2 gay Democratic activist John Fanning finished in first place with 140 votes and Ward 8 gay Democratic activist David Meadows finished in second place with 127 votes in a race in which six male candidates committed to supporting President Biden were competing for three male seats in a section of the city designated as Congressional District 1, which included registered Democratic voters in Wards 1, 2, 6, and 8.

Ward 7 gay Democratic activist Jimmie Williams won his race, finishing in third place with 200 votes in a race in which eight male candidates committed to President Biden competed for four male seats in the Congressional District 2 section of the city that included Wards 3, 4, 5, and 7.

Gay Democratic activist Felipe Afanador lost his race, finishing in sixth place with 47 votes in the Congressional District 2 election for male candidates backing Biden. It couldn’t immediately be determined which of the four wards in District 2 he is from.

The Washington Blade didn’t learn about Afanador’s status as an LGBTQ candidate until the Capital Stonewall Democrats announced it one day before the April 20 party election in an email statement.

In the Congressional District 2 race among female candidates, in which eight candidates competed for three female seats, transgender rights advocate and Ward 3 Democratic Party activist Monika Nemeth lost her race, finishing in sixth place with 49 votes.

The five LGBTQ candidates were among 32 candidates competing for just 13 elected delegate positions in D.C. D.C. will have a total of 51 delegates to the Democratic Convention, but the other 38 include elected officials and party leaders who are considered “automatic” or appointed delegates. The Democratic Convention will be held in Chicago Aug. 19-23.

Observers familiar with the April 20 party caucus election said Fanning, Meadows, and Williams had participated in local D.C. Democratic Party events and activities for a longer period than Nemeth and Afanador and appear to have been better known among Democratic voters in their respective wards as well as other wards. Those factors contributed to their receiving significantly more votes than most other candidates, observers have said. 

In his candidacy statement posted on the D.C. Democratic Party website, Afanador said he worked on the 2020 Biden presidential election campaign in Pennsylvania. His LinkedIn page says in 2022 he began work in Washington for the Biden administration as an official in the U.S. Department of Agriculture.

Nemeth is a past president of D.C.’s Capital Stonewall Democrats, the city’s largest LGBTQ local political group, and has been an active member of the D.C. Democratic State Committee, the local party governing body. She served as a Biden delegate at the 2020 Democratic National Convention.

“It is important for our D.C. delegation to have strong LGBTQ representation,” Capital Stonewall Democrats said in its April 19 statement. “There are five LGBQ candidates running to be delegate, and Capital Stonewall Democrats asks that our members support each one,” the statement says.

“Unfortunately, they fell short, but they and all queer Democrats are welcome to attend and participate in convention events and activities sponsored by the national and local party,” Meadows told the Blade in referring to Nemeth and Afanador. “Our shared goal is to unite behind the Biden-Harris ticket to protect our LGBTQ rights from being dismantled by Donald Trump and the GOP,” Meadows said.

“Running for District Delegate is one of the most grassroots efforts,” Fanning told the Blade. “It’s very beneficial to align yourself on a slate with community leaders that have either previously run for District Delegate or have developed a constituency in their community from other civic engagements,” he said, referring to possible reasons for his, Meadows, and Williams’s election victory.

Aside from the D.C. elected LGBTQ delegates, two prominent D.C. LGBTQ Democratic leaders will be appointed as delegates to the 2024 Democratic National Convention in their role as members of the Democratic National Committee from D.C. They are Claire Lucas, a highly acclaimed Democratic Party and LGBTQ rights advocate and party fundraiser; and Earl Fowlkes, one of the lead organizers of D.C.’s annual Black LGBTQ Pride celebration and former president of the Capital Stonewall Democrats. Both are committed to supporting President Biden as the Democratic nominee for re-election.

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Maryland

Joe Vogel campaign holds ‘Big Gay Canvass Kickoff’

Gay Md. lawmaker running for Congress

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Maryland state Del. Joe Vogel (D-Montgomery County) attends the "Big Gay Canvass Kickoff" event at his congressional campaign headquarters in Gaithersburg, Md., on April 19, 2024. (Washington Blade photo by Michael K. Lavers)

GAITHERSBURG, Md. — Maryland state Del. Joe Vogel (D-Montgomery County) on Friday held a “Big Gay Canvass Kickoff” event at his congressional campaign’s headquarters.

LGBTQ+ Victory Fund Vice President of Outreach and Engagement Marty Rouse and John Klenert, a member of the DC Vote and Victory Fund Campaign board of directors, are among those who participated alongside members of Equality PAC. Vogel spoke before Rouse, Klenert and others canvassed for votes in the area.

“Joe brings a fresh new perspective to politics,” said Gabri Kurtzer-Ellenbogen, deputy field director for Vogel’s campaign.

Vogel, 27, is among the Democrats running for Congressman David Trone’s seat.

Trone last May announced his bid to succeed retiring U.S. Sen. Ben Cardin (D-Md.) in the U.S. Senate. 

The Democratic primary is on May 14. Vogel would be the first Latino, the first gay man and first Gen Zer elected to Congress from Maryland if he were to win in November.

“We need a new generation of leadership with new perspectives, new ideas, and the courage to actually deliver for our communities if we want things to get better in this country,” Vogel told the Washington Blade last month during an interview in D.C.

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Maryland

Montgomery County police chief discusses arrest of trans student charged with planned school shooting

County executive tells news conference student’s trans identity is irrelevant to criminal charge

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(Photo by jiawangkun/Bigstock)

Montgomery County, Md., Police Chief Marcus Jones joined other county and law enforcement officials at a news conference on Friday, April 19, to provide details of the police investigation and arrest of an 18-year-old high school student charged two days earlier with threats of mass violence based on information that he allegedly planed a mass shooting at the high school and elementary school he attended in Rockville, Md.

In charging documents and in a press release issued on April 18, Montgomery County Police identified the arrested student as “Andrea Ye, of Rockville, whose preferred name is Alex Ye.”

One of the charging documents states that a friend of Ye, who police say came forward as a witness who played a crucial role in alerting authorities to Ye’s threats of a school shooting, noted that Ye told the witness that Ye identified as the transgender student he wrote about as character in a 129-page manifesto outlining plans for a school shooting. Police have said Ye told them the manifesto was a fictional story he planned to publish.  

At the news conference on Friday, Police Chief Jones and other law enforcement officials, including an FBI official and Montgomery County Executive Marc Elrich, referred to the student as Alex Ye and Mr. Ye. None of the officials raised the issue of whether Ye identified as a transgender man, seven though one of the police documents identifies Ye as a “biological female.”

County Executive Elrich appeared to express the views of the public officials at the news conference when one of the media reporters, during a question-and-answer period, asked Elrich why he and the others who spoke at the news conferment failed to “admit that this individual was transgender.”

“Because it’s not a lead,” Elrich replied, asking if the press and law enforcement authorities should disclose that someone arrested for murder is “a white Christian male who’s heterosexual.” Elrich stated, “No, you don’t – You never publish somebody’s sexual orientation when we talk about this. Why you are focusing on this being a transgender is beyond me. It’s not a news story. It is not a crime to  be transgender.”

The reporter attempted to respond but was cut off by the press conference moderator, who called on someone else to ask the next question.

In his remarks at the press conference Chief Jones praised the so far unidentified witness who was the first to alert authorities about Ye’s manifesto appearing to make threats of a mass school shooting.

“Now, this is a situation that highlights  the critical importance of vigilance and community involvement in preventing potential tragedies,” Jones said. “I commend the collaborative efforts of the Montgomery County Police Department, the Federal Bureau of Investigation,  the Rockville City Police Department, and the Montgomery County Public Schools, as well as Montgomery County Health and Human Services,” he told the gathering.

“Thanks to their swift action and cooperation a potentially catastrophic event was prevented,” Jones said.

Jones pointed out that during the current school year, police have received reports of 140 threats to the public schools in Montgomery County. He said after a thorough investigation, none of them rose to the level where an arrest was made. Instead, police and school officials took steps to arrange for the student making the threats and their parents to take remedial action, including providing  mental health services.

“But this case is different,” Jones said. “This case is entirely different that takes it to a different level. It was a concerned witness who brought this matter to light by rereporting the suspect’s manifesto to the authorities. This underscores the value of community engagement and the ‘see something say something’ approach,” he said.

Jones mentioned at the press conference that Ye was  being held without bond since the time of his arrest but was scheduled to appear in court for a bond hearing on Friday shortly after the press conference took place to determine whether he should be released while awaiting trial or continue to be held.

In his manifesto obtained by police, Ye writes about committing a school shooting, and strategizes how to carry out the act. Ye also contemplates targeting an elementary school and says that he wants to be famous.

In charging documents reported on by WJLA 7 and WBAL 11, the 129-page document, which Ye has referred to as a book of fiction, included writings that said, in part:

“I want to shoot up a school. I’ve been preparing for months. The gun is an AR-15. This gun is going to change lives tomorrow … As I walk through the hallways, I cherry pick the classrooms that are the easiest targets. I need to figure out how to sneak the gun in. I have contemplated making bombs. The instructions to make them are surprisingly available online. I have also considered shooting up my former elementary school because little kids make easier targets. High school’s the best target; I’m the most familiar with the layout. I pace around my room like an evil mastermind. I’ve put so much effort into this. My ultimate goal would be to set the world record for the most amount of kills in a shooting. If I have time, I’ll try to decapitate my victims with a knife to turn the injuries into deaths.”

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