October 17, 2011 at 8:01 am EDT | by Lou Chibbaro Jr.
Judge rules against Choi in ‘vindictive’ prosecution claim

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.


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

  • What keeps getting lost in this is the fact that Assistant U.S. Attorney Angela George charged ALL 13 of us with the same extradordinary federal offense even tho she tries to justify applying it to Dan Choi because it was his third arrest at the White House. SEVEN of the 13, including myself, had NOT been arrested at the White House at all before for protesting during the same period in which Dan was arrested but we aere ALSO given the same charge.

    As an officer of the court, I believe Ms. George, too, is sworn to act and speak truthfully. Pity she is incapable of that, and that Judge Lamberth has joined her in twisting the law to benefit the government. I hasten to emphasize that I had no problem with being arrested for an act of civil disobedience. But the specific charge applied to us was legally unjustified, and, thus, we were all vindictively prosecuted.

    Michael Bedwell
    Arrestee #5
    The White House
    November 15, 2010

  • A veteran went actually over the White House fence under the previous administration, emphatically trying to speak to then President George W. Bush, to end the sniper operations in Iraq. He thought it was not working and had lead to accelerated acts against US personnel, Humvee tires shot out of nowhere, which I once thought not deflatable, and other indeterminable bullet origins. These protest actions do not present a trespass or criminal intent, why not allowed under the Bill of Rights? “Obstructing a sidewalk” had been used against some sitting along one NYC back in the last century.

  • In D.C. I don’t think judicial professionals there would be vindective towards Dan Choi, but I wouldn’t want to see this precident continued all over the country, because in BFE America, gay issues do inspire a ton of animus.

  • Michael,

    Thank you for clarifying this.

    Absent in all of this are the complaints of “Too Big Government” that we so frequently hear from the Right. Protests such as these remind me of the Alabama marches of the 60’s and the same Governmental domineering that was also experienced then.

    Now it is Wall-Street. Let the protests contine.

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