Updated at 5:18 p.m.
In the high-profile bench trial of Daniel Choi, a gay former soldier arrested for protesting the now-defunct Don't Ask Don't Tell policy, a Washington federal judge has directed the magistrate judge hearing the case to not consider a defense of selective or vindictive prosecution.
U.S. District Chief Judge Royce Lamberth, in issuing a writ of mandamus (PDF) to the presiding magistrate judge in Choi's case, ruled that such a defense theory should have been brought up pre-trial. Lamberth also clarified for the first time that a district judge can issue such a writ to a magistrate in the same court, in the same way an appellate court can issue a writ to a district court.
Choi's attorneys said late Tuesday afternoon that they plan to seek an expedited review of Lamberth's decision from the U.S. Court of Appeals for the D.C. Circuit.
Choi, a former Army lieutenant who was discharged in 2009 after publicly announcing he was gay, was arrested with 12 other demonstrators outside the White House in November 2010. Choi has been a vocal opponent of Don’t Ask Don’t Tell, the military’s former policy barring openly gay servicemembers.
The other protestors resolved their cases through a deferred-sentencing agreement with the government. Choi declined the offer.
U.S. District Magistrate Judge John Facciola has been presiding over Choi’s trial, which began on Aug. 29. It was halted, however, after prosecutors objected to Choi and his attorneys presenting a defense of selective or vindictive prosecution.
According to the petition (PDF), Assistant U.S. Attorney Angela George learned shortly before the trial that Choi’s legal team planned to present a selective or vindictive prosecution defense. Such a defense theory, according to briefs, would point out disparities in how Choi’s case was handled compared with his previous arrests for protesting, and also how protestors who had gathered outside the White House were treated in the past.
George argued at the time that selective or vindictive prosecution is a pretrial defense, so Choi could not bring it up at trial. Facciola declined to issue a ruling, and allowed Choi’s team to call witnesses who testified in support of a selective or vindictive prosecution defense theory. Facciola indicated he would allow the defense theory, and then stayed the case on Aug. 31 to allow the government to file a petition for a writ. Choi opposed the petition (PDF) on jurisdictional and substantive grounds.
Lamberth wrote that he was unaware of any other cases where a district judge issued a writ to a magistrate in the same court, but found that in federal misdemeanor cases where the magistrate serves as the presiding judge and the district serves as the appellate body, the district court does have jurisdiction to issue a writ.
“The analogy between a federal circuit court of appeals and a district court on the one hand, and a district court and a magistrate on the other, is inescapable” in cases like Choi’s, Lamberth wrote.
On the merits, Lamberth agreed with the government that a selective or vindictive defense claim should have been made pre-trial, since it deals with a constitutional issue with the prosecution, as opposed to a defense theory that has to do with the underlying facts of the case.
“In the exceedingly rare set of circumstances posed here, mandamus is the only credible option to enforce the law,” Lamberth wrote.
The U.S. attorney’s office, through spokesman William Miller, declined to comment.
Choi's New York-based lead counsel, Robert Feldman, said in an e-mail that they plan to appeal, writing that they believe Lamberth "had to jump through unique and novel hoops to reach this unprecedented result." Feldman's co-counsel is Fort Lauderdale, Fla.-based attorney Norman Kent.
"We simultaneously stand ready to continue the criminal trial before Judge Facciola and are still confident that Judge Facciola will find our client not guilty," Feldman added.