Setbacks For Dan Choi: Judge Denies Use Of Selective Prosecution

A new development has sprung up in the ongoing case related to Dan Choi's arrest in the November 15th, 2010 demonstration at the White House fence, as Judge Lamberth today ruled on the government's attempt to block his legal counsel's proposed defense of selective or vindictive prosecution.  Prosecutor Angela George had previously filed a writ of mandamus barring the defense's use in this case, which Lamberth today acceded to and disallowed the defense in court.

Oh yeah, and I was there too.

From the National Law Journal (via Legal Times):

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, 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.

This ruling represents a significant need for restructuring of the defense's strategy and I can't help but think that Judge Lamberth has acted in collusion with the government to hamstring an important court case with far-reaching implications on issues of free speech.  It is seemingly clear to many that he (and the rest of the protesters present by association with him) were victims of selective prosecution, and Lamberth's ruling provides a disturbing precedent for the government to prosecute demonstrators with extreme prejudice.