Ex-Soldier Hits a Wall Fighting Protest Charge


     (CN) – A federal judge has excluded certain evidence that could have led to the dismissal of charges against Daniel Choi, a gay former Army officer whose protest against the military’s “don’t ask, don’t tell” policy landed him in jail last year.



     Choi was arrested in November 2010 after handcuffing himself to a fence at the White House along with 12 other people, in protest against Don’t Ask, Don’t Tell. Unlike his fellow protestors, Choi refused an offer to plead guilty to avoid prosecution of the misdemeanor charge of failing to obey a lawful order.
     During his trial, Choi presented evidence that he was arrested two previous times for the same misdemeanor but not prosecuted.
     In late August, after U.S. Magistrate Judge John Facciola said he would allow Choi to pursue selective or vindictive prosecution as a defense, the government filed a writ of mandamus to subvert the defense.
     Agreeing that the magistrate had made the wrong call, Chief U.S. District Judge Royce Lamberth signed an order directing Facciola not to consider the evidence as a defense or basis to dismiss the charges against Choi.
     Choi’s case presents “a rare set of circumstances,” supporting the “extraordinary remedy” of a writ of mandamus in favor of the government, the 17-page opinion states.
     “Magistrate Judge Facciola has indicated that he may enter a judgment of acquittal in favor of respondent for reasons wholly unrelated to the merits of the respondent’s defense,” Lamberth wrote. “Such a decision would be unreviewable, since jeopardy has attached. Further, Magistrate Judge Facciola has indicated that he may dismiss the information, sua sponte or on motion by respondent, on the basis of a legal argument that respondent has waived. Although a motion by respondent to dismiss would be reviewable, this court sees no need to force petitioner to undergo the expense of responding to a claim that the Federal Rules of Criminal Procedure bar respondent from making.”
     “The law is straightforward: selective and vindictive prosecution claims are not defenses on the merits but go to the constitutionality of the prosecution, and motions to dismiss based on defects in the institution of criminal proceedings must be brought prior to the start of trial unless good cause exists otherwise,” Lamberth added. “In the exceedingly rare set of circumstances posed here, mandamus is the only credible option to enforce the law.”
     Lamberth said the government had “no other adequate means of relief” and that a writ of mandamus was “the only means by which” the government “can obtain review of its argument that selective and vindictive prosecution are not defendants on the merits to a prosecution.”
     The government proved that Facciola has a “clear duty” to maintain the charges against a selective or vindictive prosecution defense, the judge found.
     “Such claims do not bear on the fact of a defendant’s guilt or innocence, but instead allege a bar against prosecution,” Lamberth wrote. “Indeed, while respondent repeatedly refers to the claim as a ‘defense,’ he concedes that it is not a defense on the merits. There is no legal basis for Magistrate Judge Facciola to enter a judgment of acquittal on the grounds that the government selectively or vindictively prosecuted respondent, and thus the magistrate has a clear duty to refrain from entering such an acquittal.”
     Choi, who served as an U.S. Army infantry officer during the Iraq war, spoke out against Don’t Ask, Don’t Tell after coming out on “The Rachel Maddow Show” in late 2009.
     The Pentagon repealed the policy in September 2011, and Choi has since applied to serve in the military again.

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