Dan Choi | Don't Ask, Don't Tell | Military | News

Dan Choi Trial Halted After Judge Allows Defense Argument That Govt Singled Choi Out for 'Vindictive Prosecution'

Dan Choi's trial yesterday was halted for a 10-day delay yesterday after U.S. Magistrate Judge John Facciola said he would allow Choi's lawyers to argue that the government singled Choi out for "vindictive prosecution." The government will now ask a higher court to quash that order.

Wh_choi MetroWeekly has been following the case closely:

Facciola said this morning that he had found there was prima facie evidence for "vindictive prosecution," meaning enough evidence was presented to allow Choi's lawyers to pursue such a claim. As a result, Choi's lawyers would be able to ask for more documents and evidence from the government in order to investigate if higher-level officials advised their subordinates to try Choi in federal court rather than D.C. court and, if so, why.

2_choi Some additional fascinating coverage by John Riley here:

Under oath, Beck testified that immediately prior to Choi's March 2010 arrest, he had instructed Choi and former Capt. James Pietrangelo to leave the White House sidewalk. Under cross-examination by Assistant U.S. Attorney Angela George, Beck said he believes the ledge on which the White House fence rests -- and where the two men were standing -- can be considered part of the sidewalk. He also said that since the men were not moving when they chained themselves to the fence, they were violating the regulation that allows protesters to demonstrate in front of the White House as long as they keep moving.

However, Beck also said he had spoken with someone from the D.C. Attorney General's Office who had told him the Attorney General did not consider the fence ledge to be part of the White House sidewalk. In July 2010, the D.C. Attorney General's Office dismissed charges against Choi and Pietrangelo for that reason.

When Beck was on the stand, he said he refrains from using "slanderous" terms such as "gay" or "homosexual," a statement that Choi's lawyers jumped on as soon as the court dismissed for a short mid-morning break.

"I believe that because Lt. Dan Choi is a homosexual war veteran dressed in full military regalia, he was unfortunately selected or singled out to be arrested and prosecuted," lead defense attorney Robert Feldman told reporters at the break. "To this day, the prosecution had to be literally forced to notice Lt. Choi and Capt. Pietrangelo's rank. Today, Capt. Phil Beck refused to acknowledge their rank. This fact, with his revelation that he believes 'gay' and 'homosexual' to be slanderous terms, shows, in my view, that this public servant is a homophobe, and, in my view, the record bears this out."

Choi lawyer Norman Kent offered a take to MW following what went down: "The government is throwing a fourth quarter 'Hail Mary' pass that God is going to knock down," Kent said. "It's the most remarkable act of desperation that I've ever seen in 35 years of practice."

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  1. The most dangerous placed to stand is between Dan Choi and a camera.

    Posted by: Jim | Sep 1, 2011 8:52:26 AM

  2. Choi knows from danger having served two combats tours in Iraq.

    Tell us your war stories of nearly being trampled at a Barney's sale over a pair of Prada loafers.

    Posted by: Clarknt67 | Sep 1, 2011 9:10:30 AM

  3. Jim I found your comments insulting to me as an American who believes in equal rights for all. When people fight for freedom they not only face vindictive governments but vindictive people in their own community who can't stand the idea that someone is brave enough to stand up to their common oppressors.

    Posted by: Joey | Sep 1, 2011 9:20:29 AM

  4. @Jim: I do believe that Choi plays to the camera quite a bit but not for the ignoble reasons your sarcasm suggests. No one can suggest that Choi hasn't put his flesh-and-blood where his mouth is--including twice in Iraq. As a clinician myself, I do believe, though, that he has appeared so emotionally ragged in front of the camera at times that it reveals his PTSD--PTSD that he acquired in service to our country.

    Meanwhile his conservative mother and father have not exactly been there for him; and many gay people and organizations have turned their backs on him when his story started to make them uncomfortable--for whatever reason. In other reasons, they--like you, Jim--have thrown him under the bus just like Republicans do to veterans and gay people all the time. I wouldn't be too proud of myself for what I posted about Choi if I were you, Jim.

    Posted by: Danny | Sep 1, 2011 9:46:53 AM

  5. Jim is spot on.

    Please guys, you call an attention seeker brave? Riight. Also Clark, not sure what it's like in the US but here in the UK, only really dumb peopl go to the army and they especially target the uneducated or people with a very limited view on the world-low cognitive dissonance-to join the army.

    They aren't fighting for me. They are fighting for themselves. Just like the police very few are actually genuinely nice people.

    Will never forget those torture photos that the US army took of those iraqi prisoners! God bless America indeed!

    Posted by: Rowan | Sep 1, 2011 9:49:06 AM

  6. TYPO APOLOGY for the above. In my last paragraph I should have said, "In other words..." rather than, "In other reasons..." Sorry folks.

    Posted by: Danny | Sep 1, 2011 9:49:20 AM

  7. Rowan, broadbrushed linking of Choi with the slime who did the torturing doesn't become you as a man. Clearly Choi is not the "dumb" or "uneducated" that you suggest. I'm not trying to say that we don't have plenty of that kind in our military--in that sense your assessment is correct. But some people join the military because they believe they can be of service to their country and countrymen by doing so. Choi had - has - conspicuous gifts to offer as an Arabic translator, and he willingly offered them in two tours in Iraq.

    It wouldn't hurt any of us gay men to be just a little less hard on one another - or at least to think twice before posting such unkind, narrow criticisms of people we don't know.

    Posted by: Danny | Sep 1, 2011 9:55:08 AM

  8. Rowan, you hardly have a military history to proud of in the UK. Maybe your still smarting about how that publicity hog Gandhi cleaned your oppressive military clock.

    Posted by: Joey | Sep 1, 2011 10:34:44 AM

  9. Since we are apologizing for typos please forgive mine.. I meant you're rather than your. And in all honesty, I meant my post to have an edge of humor about it. The Iraqi photos are indeed appalling. All great Powers abuse it. That is why it is important to stand up to them. The trial of Lt. Choi who is indeed a very bright man is about homophobia let's not forget that.

    Battles in modern times are fought in front of cameras. To think otherwise is naive. It seems some would like him to slink back into the closet.

    Posted by: Joey | Sep 1, 2011 10:40:56 AM

  10. Rowan, things are similiar here in the US, where the military does depend largely on recruiting people from lower socio-economic class.

    Your comment speaks of a disgusting level of privilege and elitism that would paint young people who find themselves with few vocational and education opportunities as war criminals. I'm on page with holding the military industrial complex accountable for their imperialist agenda.

    But let's not pretend the troops can affect policy. That is the domain of our leaders. And let's not characterize young, disadvantaged teenagers looking for career and educational opportunities as blood-thirsty barbarians. That's just ignorant.

    Dan doesn't apply though as he attended West Point Academy an elite and highly regarded institution of higher learner. He was well on-track to being one of the "haves" in the officer core, before he sacrificed that for equal rights for all LGB troops.

    Posted by: Clarknt67 | Sep 1, 2011 10:59:49 AM

  11. DADT isn't over. A GOP president and Congress could reenact it. Time and again Dan Choi is one of the few people willing to stand between that law and its future.

    If you're too stupid to recognize that fact it's your own look out. I personally adore the man. He's a hard ass and exactly what the issue requires.

    Posted by: tarraraboomdeeya | Sep 1, 2011 11:02:27 AM

  12. There is no question that Choi is mentally ill. There is also no question that, aside from fighting for LGBT equality, his politics are largely disgusting. It is well-known that the people he considers his best friends are widely accepted to be the scum of the Earth. He also has a well-earned reputation for being very unlikeable.

    I often wonder how much of his activism isn't about bravery or strategy, but just about the fact that he's not in the least well or at all a nice guy.

    However, he was right to protest, he was right to fight his arrest and he is right that the government is singling him out for malicious persecution.

    I just hope we all -- Choi, included -- come out of this better for his being right. And I hope he finally gets the help he needs.

    As for the military itself, my views on that are as radical-left as my views on anything else. My views on the men and women in the military are a logical extension of those views, even though they may seem to be another thing entirely.

    The military may be evil, but the vast majority of the people who actually fight in it are not and probably the vast majority of them had no other option for their lives, which is intentional, of course. A permanent underclass insures we'll always have soldiers.

    I will not insult a group of people who are braver than I am, more selfless than I am, and most likely more desperate than I am. There's probably not a single American military operation going on in the world right now that's in any way just or right, but that's not the fault of the people who are fighting them, many of whom have been successfully indoctrinated into believing they're doing the right thing -- which also doesn't speak poorly of the military person, but rather the military machine.

    It's easy to sit at your computer and mock people who are, by and large, better than you -- especially when you'd never in a million years actually do it to their face.

    Posted by: ohplease | Sep 1, 2011 11:13:44 AM

  13. I've certainly been willing to give the Obama administration credit when it's due, e.g., the brilliant anti-DOMA brief of July 1, 2011, and lobbying the unenlightened Pentagon brass until they were on board with DADT repeal. However, consider the almost unheard of tactic of prosecuting the 13 activists on *federal* charges rather than the standard procedure of prosecuting for only local charges (District of Columbia). This was s-t-u-p-i-d on the part of someone in the federal government, and it's coming back to haunt the administration.

    The Assistant U.S. Attorney, Angela George, is a nutcase who is asking Judge Facciola's superior to rule that Facciola was incompetent in allowing Choi's lawyers to use "vindictive prosecution" in their defense. Then she's going to go back to Facciola's court where Facciola will rule on the case. What does Angela George use for brains? This entire sorry episode is making the Obama administration look terrible. They need to put the brakes on this before it spins out of control. Unfortunately, the Department of Justice is actually involved in this cluster f*ck. Click on Andy Towle's link above, "Some additional fascinating coverage by John Riley here", which points you to the Metro Weekly article. You'll find this gem:

    "After returning from a long lunch break, George and her assistant were joined by multiple DOJ employees, who sat in the viewing area, whispering among themselves. George then engaged in a back-and-forth with Judge Facciola and Choi's defense lawyers over whether the defense of selective prosecution, or "vindictive prosecution" should have been raised before the trial."

    This is very self-defeating on the part of the Obama administration. It will only lose votes among independents and Democrats because it's so obvious that all of this is vindictive prosecution. And any fundie Xtians who think this is amusing because it's anti-gay won't vote for Obama anyway. People need to tell Obama to pull the plug on this now, before it turns into a genuine train wreck.

    Posted by: Artie Rimbaud | Sep 1, 2011 11:22:14 AM

  14. Whatever Dan is or is not, why did the government have five, count them, FIVE taxpayer paid Assistant U.S. Attorneys in court yesterday? Why are they acting as if he is as dangerous as if he were an international drug smuggler or a Soviet spy or an Al Qaeda terrorist? When policing the White House sidewalk is the responsibility of the Park Police who arrested him, 11 others, and myself, why were the Secret Service ever involved in what were obviously peaceful protests?

    Why did the government prosecutor refuse to, as is customary, address Dan and witness Jim Pietrangelo by their last rank until the longtime, respected judge insisted?

    Who in the government ordered a senior attorney for the Department of Interior, to whom the Park Police report, to signal them just hours before the protest that they should charge us with a federal violation rather than the customary city law?

    Why is the government still insisting on that federal charge when the judge first made clear to them back in March that he believed they were "overcharging"? Why are they now asking that THE JUDGE be reprimanded?

    Why, when he made clear to us by mail back in December that we would be informed of our court date also by mail did armed U.S. Marshals suddenly start showing up at our homes to "inform" us?

    Why is the President Who Insisted He Was Different letting those under him act as if he were Richard Nixon with his Enemies List or the Bush Reich?

    Posted by: Michael Bedwell@LeonardMatlovich.com | Sep 1, 2011 11:24:49 AM

  15. @ Ohplease,

    I'm delighted to see some hints of common sense developing in your commentary, having been all too familiar with your comments in the past. You understand that, for many, the armed forces is often the only option for getting college tuition and other benefits. You also understand the most important facts about this case. As you put it:

    "However, he was right to protest, he was right to fight his arrest and he is right that the government is singling him out for malicious persecution."

    As far as your continuing flames about Dan Choi, I'll be generous and call those comments off-topic. Most readers are concerned with the effects of this case on LGBT rights, not on your personal assessment of Choi's personality, etc. But that's only a suggestion for improving your ability to write persuasively.

    Posted by: Artie Rimbaud | Sep 1, 2011 11:41:55 AM

  16. Rowan - you are able to spout your ignorant rant today because the United States and our "dumb" military saved your ass in WW2. You and some others here may not feel the need to serve their country and fellow citizens with service in the military and that is your right. But don't bash those of us do serve or have served. I personally have met thousands of men and women who lived through WW2 that understand and appreciate the sacrifice of those serving made and continue to make. The military men and women from the lowest private to the 4 star general go where our CIVILIAN leaders send us.
    I don't personally know Lt. Choi and I doubt you or others on this site do either, but I do know that he has courage and has made sacrifices in the name of equality for all LGBT with his civil protest of DADT. I don't see any other LGBT organization making the same sort of sacrifices that Dan has and I think that there is tremendous envy that he is bringing lots of attention to his cause and it makes their cocktail parties look rather ineffective.
    20 years retired and proud of my service!

    "Any man may be asked in this century what he did to make his life worthwhile, I think can respond with a good deal of pride and satisfaction, I served in the United States Navy" John F. Kennedy

    Posted by: Major707 | Sep 1, 2011 11:56:09 AM

  17. @ Michael Bedwell,

    I've always responded to your comments starting with "Michael Bedwell", even though your signature on Towleroad was always "Michael@..." But lo and behold, your signature is now "Michael Bedwell". (LOL)

    On a more serious note, I explain in my comment above what a train wreck it would be for the Obama administration to let this vindictive prosecution spin out of control. You list the reasons why this is a vindictive prosecution very accurately. Yes, it is reminiscent of Nixon and Bush, and I hope Obama steps back from the edge of the cliff. Continuing this insane prosecution would be a net loss for Obama, and I wouldn't be happy to see a net gain for the 2012 Republican candidate. Neither would I be happy to see a net gain for the Republican candidate via a guaranteed-to-lose third party presidential candidate. Who are they now?

    (1) Ralph Nader
    (2) the Green Party
    (3) the Socialist Party
    (4) write-in vote for Liza Minnelli
    (5) Let's not forget *your* favorite, a write-in vote for the ghost of Joan Crawford

    Relax, Bedwell. The Internet is all in the spirit of good fun. I just don't see the net gain for LGBT people in having Mitt "Magic Underwear" Romney doing his best to push back the recent gains in equal rights. It would seem a rather self-loathing position, n'est-ce pas?

    Posted by: Artie Rimbaud | Sep 1, 2011 12:04:55 PM

  18. This trial has gotten a whole lot more interesting! How many lawyers does it take to screw up a brief? Now that the DoJ knows the judge is sympathetic and won't rubber stamp this prosecution, it's panics-ville time. DC won the first round getting arrested, and now he gets round two with the very political charge of malicious prosecution. I'm getting the impression that the Chicago machine people Obama installed at the DoJ are used to compliant judges and manhandling political opposition. They must be sweating bullets at night worried this will be reported in the NY Times or CNN, both deadly outcomes to a lot of fall fundraising activity.

    Posted by: anon | Sep 1, 2011 12:37:59 PM

  19. @ Anon,

    If Obama doesn't back off on this misguided case, it *needs* to be reported in the NY Times or CNN.

    Posted by: Artie Rimbaud | Sep 1, 2011 1:06:31 PM

  20. So add double jeopardy to malicious prosecution.

    Posted by: Frank | Sep 1, 2011 1:31:28 PM

  21. this trial is a waste of money, but how can anyone be surprised that the government finally got fed up with Choi's antics? Maybe he wanted to bring the entire issue to trial anyway so he'd get more free publicity, I don't know. All I know is that you don't handcuff yourself to the White House fence, refuse to accept a plea deal (with 0 jail time)and expect nothing to happen to you. CHoi's antics only serve to alienate the president and his party, our only allies in Washington. If they are so horrible, then wait to see what happens when Perry or his ilk win the 2012 election

    Posted by: Jackie | Sep 1, 2011 3:06:23 PM

  22. Jackie, Jackie, Jackie. YOU must be a U.S. Circuit Court judge since YOU seem to know more than ***federal District judge Facciola who AGREED with Dan that there IS reason to see this as "vindictive prosecution—which is why the Obama DOJ is now going after ***HIM.

    Posted by: Michael Bedwell@LeonardMatlovich.com | Sep 1, 2011 6:16:34 PM

  23. Whomever wrote that Choi was "well on-track to being one of the "haves" in the officer core, before he sacrificed that for equal rights for all LGB troops" clearly doesn't understand military promotions. Upwards of 99.9% of Officers make it to CPT (O-3 rank). Choi did not BEFORE he came out of the closet. This means his career had faltered for some reason no one ever asks about before he decided to "risk" coming out.

    Also, he was not a translator or linguist. He spoke arabic, that's all...and I'm willing to bet it wasn't at a level high enough to pass the DLPT (defense language proficiency test) with much higher than a 2/2 (not high enough to be very useful).

    I only bring these points up because for someone who graduated from West Point (and who seems to be very proud of it becuase he brings it up in EVERY interview), this is basically a lie by omission. By not correcting the record and letting untruths continue when he knows better, he breaks the Honor Code of the very institution upon whose name he gains credability.

    Posted by: cadet | Sep 2, 2011 12:20:50 AM

  24. *corps...note core.

    Posted by: cadet | Sep 2, 2011 12:21:21 AM

  25. Ever notice that when there is a story about Lt Dan Choi there are a lot of posts criticizing him? IGNORE THEM! I would not be surprised if they tend to be from the same gouernment forces who are trying to bring him down Really what TRUE GLBT would be upset at someone fighting 4 their equality? NOTE TO THOSE WHO ARE PRETENDING TO BE GLBT AND GOING AFTER LT DAN CHOI: u r so transparent all I can do is LAUGH AT YOU! Oh and of course not complete reading your BS

    Posted by: FunMe | Sep 2, 2011 11:10:32 AM

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