Activist Dan Choi suffers legal setback in White House protest arrest case

Dan Choi Staff Reports

WASHINGTON — LGBTQ equality rights activist Dan Choi has been dealt a setback in a court case resulting from his arrest during a November 2010 White House protest of the now repealed “Don’t Ask, Don’t Tell” policy that banned openly gay service members in the U.S. military.

U.S. District Chief Judge Royce C. Lamberth ruled Tuesday that Choi’s attorney should have raised the issue of harsher treatment before trial during pretrial motions and therefore cannot use at trial as a defense.

Dan Choi

U. S. District Chief Judge Royce C. Lamberth ruled Tuesday that Choi’s attorney should have raised the issue of harsher treatment before trial during pretrial motions and therefore cannot use at trial as a defense.

Prosecutors had appealed an earlier ruling by U. S. District Court Magistrate Judge John Facciola, which was in agreement with Choi’s lawyer who had argued that his client was being treated more harshly. Choi and 12 other activists were arrested November 15 of last year for handcuffing themselves to the White House fence to protest “Don’t Ask, Don’t Tell.”

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.

[…]

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.

Choi is a West Point graduate who was discharged from the U.S. Army under the now repealed policy after he revealed his sexual orientation on-air during an interview on MSNBC’s “The Rachel Maddow Show” in 2009.

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