Dan Choi was in court facing federal charges for protesting in front of the White House until yesterday when Judge John M. Facciola put the trial on hold for 10 days. The reason is a bit technical, but spells good news for Choi and the First Amendment.
In short, Judge Facciola agreed with Choi’s legal team that the U.S. government specifically pressed federal charges with jail time against the Don’t Ask, Don’t Tell protestors (instead of the customary $100 to $1000 fine) because they wanted to make examples of them. By singling out the DADT protestors for special punishments, Facciola said that Choi team could mount a defense by accusing the government of “vindictive prosecution.”
In response, the prosecution decided to present the Court of Appeals with the Harry Potter-esque sounding “writ of mandamus”— basically a lawsuit alleging that Judge Facciola abused his discretion by allowing Choi to use a “vindictive prosecution” defense during trial rather than in pre-trial motions when such defenses are customarily put forth.
Metro Weekly reports that:
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Once the writ is filed in District Court, Chief Judge Lamberth may decide to grant or deny it. If it is granted, Facciola can resume the case under instructions from Lamberth not to admit vindictive prosecution as a possible defense. If the writ is denied, the case can go back to Facciola.
Keep in mind that the prosecution isn’t arguing that this ISN’T “vindictive prosecution,” but rather that the judge mishandled an important matter of judicial procedure. The prosecution has also refused to withdraw the charges even though it’s now apparent that the Department of Justice, Secret Service, and Department of the Interior have all had a hand in singling out this protest for special handling.
In short, Judge Facciola says this is an apparent (prima facie) case of “vindictive prosecution” and the government would like to avoid that damning charge, even if it means holding up a trial for two business weeks.
Image via Hoodiefanatic
the crustybastard
So Obama wants to try Lt. Choi for the crime of peacefully assembling to petition the government for redress of grievances, AND now insists that Lt. Choi not be allowed to mount a criminal defense?
This is precisely the kind of homophobic crap President McCain would do.
I genuinely don’t give a damn if the Republicans are running Reagan’s ghost and a pair of Bachman’s underpants in 2012. I’m not voting for Obama because he just cannot stop being a such a relentlessly homophobic constitution-ignoring shithead when it matters.
MTiffany
“Keep in mind that the prosecution isn’t arguing that this ISN’T ‘vindictive prosecution,’”
Because that’s NOT what a writ of mandamus is for…
but rather that the judge mishandled an important matter of judicial procedure.
Because that’s what a writ of mandamus IS for…
doomsday1038
Dan Choi needs to go sit down some where.He started off as an protester on the right side now I think he just want attention.
Katt
@doomsday1038
SHUT UP!!! Like you are the example of perfect pro-gay protesting. What are you doing to move us forward? Dan Choi is a hero and has put his life on the line for America and now for gay rights.
Cinesnatch
@doomsday1038: The photo certainly backs your claim.
Cam
@doomsday1038:
Nothing upsets the do nothings more than somebody doing something.
DavyJones
Lets sum up: They protested in such a way that they knew was illegal so that they would face arrest, they refused to move once they were told they were about to be arrested, then they were arrested.
Later, when facing charges; 12 of the 13 people arrested plead out to a lesser charge to avoid going to court; but Chio didn’t “so that he could use the case to set 1st Amendment precedence”. Now it appears that he’s not going to win on the ground of a 1st Amendment defense and wants to cry he’s being selectively prosecuted? There is a reason you have to submit such claims before trial. You cannot simply throw legal terms at the wall and hope one sticks…
Also; lets bear in mind there is a lawful means to protest around the White House which is no less visible, nor any less potent as a physical protest (You have to stand on the other side of a closed off street about 15 ft from where they were). They knowingly choose not to do that because they wanted to be arrested because they wanted more press; That’s fine, except if they knowingly want to be arrested they knowingly place themselves liable to the consequences. Choi went even further when he knowingly decided not to plead out (as the other 12 arrested did), and now he should face the consequences of his decisions.
This isn’t about LGBT rights; it’s about law and order. There is a right way and a wrong way. I’m not even saying intentionally facing arrest is always a bad idea, It worked well for Martin Luther King Jr.; but you’ll notice he always paid his fines, and served his time.
Spike
“….but spells good news for Choi ”
Good news as in more time in front of a camera!
Cam
@DavyJones: said…
“This isn’t about LGBT rights; it’s about law and order. There is a right way and a wrong way”
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Law and Order….kind of like the LAW that said gays couldn’t serve in the military? Kind of like the LAW that said and still says in some states that gays can’t adopt? Kind of like the law that says gays can’t marry?
Support for gay rights and marriage HAD been increasing by about 1/2 – 1% per year, in the last year or so it’s gone up by 15%. I have a feeling that seeing military folks arrested at the White House didn’t hurt.
The rules and security in DC is mostly for show. For example, at 4th of July, they rope off the Capital building. For security right? Nope, so lobbyists invited by members of Congress can get the best viewing areas. Choi and the others were against a fence that the public has access to and walks by every day.
the crustybastard
@DavyJones: This isn’t about LGBT rights; it’s about law and order. There is a right way and a wrong way.
Congress shall make no law…abridging the freedom of speech…or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
What part of “no law” confuses you?
DavyJones
@the crustybastard: The Supreme Court has upheld many laws which constrain when, where, and how protests can be carried out. Take for example laws which require marches to get permits before they are carried out. So long as the people retain the ability to make their voices heard; as is the case in front of the White House, the courts have upheld the law. Choi was looking for trouble when he chained himself to that fence, he shouldn’t be too surprised that he found it…
@Cam: I agree, Choi getting arrested made the case very high profile, and I think that was his point from the start. But if you do something illegal with the intent of getting arrested; you have to face the consequences just like everyone else who gets arrested.
Cam
@DavyJones: said…
“@Cam: I agree, Choi getting arrested made the case very high profile, and I think that was his point from the start. But if you do something illegal with the intent of getting arrested; you have to face the consequences just like everyone else who gets arrested.”
_________________
Yes, and now he is using the legal system, the courts, etc… no problem with that.
DavyJones
@Cam: except he’s using them incorrectly (Or more to the point, his attorneys are; hence the Writ of Mandamus. And now we’ve come full circle…
slanty
“DON’T HIDE.” Don’t worry, Choi, you’re loud and in our faces, just how we like it.
the crustybastard
@DavyJones:
Ah yes, “no law except requiring marching permits from the very government you intend to protest.” I’m sure that’s precisely what the Constitution’s framers meant when they explicitly wrote “NO law.”
The permit rationale is that they’re required when a group chooses to protest in a way that obstructs public passages in order to allow authorities to accommodate those who are not engaged in protesting.
When MLK wrote his Letter From a Birmingham Jail (which you really ought to try reading sometime), he was being held on charges of protesting without a permit. Evidently you would have applauded Birmingham Police Chief Bull Connor’s use of water jets and dogs to impose some “law and order” on those uppity protesters.
So HRC’s Kathy Griffin rally in the square arguably would have required a permit…but that does not apply to the small Choi et al sidewalk protest. The five people in the Choi protest were not obstructing anyone’s ability to go about their business; moreover, being affixed to a fence, they effectively COULD not interfere with the public’s use of the sidewalk.
However, they were offending the president, who had already decided to have them dealt with specially.
So even assuming, arguendo, the Constitutionality of “time, place and manner limitations” to the First Amendment, SCOTUS doesn’t allow the government to discriminate based on the CONTENT of the protester’s message. Period. And that’s what the administration did. And that’s why they’re shitting themselves right now.
Finally, Dan Choi — by going to trial — is indeed “facing the consequences of his actions.” Even better, by going to trial he’s forcing the Bigot-in-Chief to face the consequences of his.