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:
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