Daniel Choi, a former U.S. Army lieutenant arrested last November while protesting the military's Don’t Ask Don’t Tell policy, is appealing a Washington federal court judge's decision to bar him from arguing a defense of selective or vindictive prosecution.
In an Oct. 11 order, U.S. District Chief Judge Royce Lamberth issued a writ of mandamus directing the magistrate judge hearing Choi's case to not consider a defense claim of selective or vindictive prosecution. Choi’s attorney, Fort Lauderdale, Fla.-based solo practitioner Norman Kent, filed a notice of appeal on Tuesday.
“The score is 1-1, and we need a judicial court of appeals to be the tie-breaker,” Kent said in a phone interview on Wednesday. The U.S. attorney’s office, through a spokesman, declined to comment.
The underlying facts of Choi’s case aside, the U.S. Court of Appeals for the D.C. Circuit will likely weigh for the first time whether Lamberth, or any district court judge, has authority to issue such a writ to a magistrate in the same court, much in the same way an appeals court can issue a writ to a district court judge. Lamberth acknowledged in his ruling that this was an unsettled issue.
In November 2010, Choi and 12 other demonstrators were arrested outside of the White House while protesting the now-defunct Don’t Ask Don’t Tell policy, which had barred the service of openly gay service members. Choi had been discharged under the policy in 2009 after publicly announcing that he was gay.
The group was charged with failure to obey a lawful order, a misdemeanor. The other demonstrators agreed to deferred-sentencing agreements with the government in order to avoid trial, but Choi declined offers to settle. Magistrates have authority to hear misdemeanor criminal cases, and a bench trial began Aug. 29 before U.S. District Magistrate Judge John Facciola.
Prosecutors halted the trial after Choi’s attorneys began presenting a theory that prosecutors had treated Choi’s case differently from his previous arrests for protesting and also with how other protestor cases were handled. Facciola indicated he would allow the defense to proceed, prompting the U.S. attorney’s office to file a petition for a writ.
Lamberth agreed with the government that a claim of vindictive prosecution should have been brought up as a pre-trial motion, not during trial. Such a claim is a constitutional question, he wrote, not a defense theory having to do with the underlying facts.