A letter from Lt. Dan Choi, a former American infantry officer in the United States Army who was on trial for protesting the since repealed “Don’t Ask, Don’t Tell” policy.
After one and a half years of criminal trial looming over my head, a totally unconstitutional “stay away” restraining order from the 1600 Pennsylvania Ave (The White House) and too many friends telling me not to fight back, the Judge dismissed the case. Forever.
Judge Juliet McKenna, Associate Judge of DC Superior Court sternly rebuked the prosecution and the many prosecutors in the audience that such sloppy mistakes and unjust outcomes are unacceptable. (Prosecutors contend it was a sloppy mistake and hide behind the different research methods they use to target certain defendants and not others.
Another interesting development: The judge did indeed find a sufficient basis to hear the testimony of the prosecutor himself, as it related to a LIMITED selective prosecution claim. As it was so limited, the only evidence she would hear was the prosecutor. Polished and well rehearsed, the Assistant Attorney General Farrelly seemed to convince the judge he just screwed up. Although this limitation prevented us from diving into the true political motivations of keeping protestors away from the White House, I am happy the numerous prosecutors who rallied to support the Government’s case learned that some defendants in Free Speech cases do not give up.
Successful Selective Prosecution claims are rare because most lawyers refuse to submit them. That was the case for me until my friend, fellow activist, former Army JAG Capt. Jim Pietragelo II, Esq. decided to help me file one.
Now, the exceedingly rare has happened twice in my protest journey. (Judge Facciola in Federal Court found a prima facie case for vindictive prosecution last year in my DADT fight.) A prima facie finding basically means the judge decided I have a significant case for selective prosecution. It’s higher than a colorable basis
or other related findings. This is significant.
Out of 1,253 environmental protestors Lt. Choi was targeted for trial and jail. Out of 65 first-day protestors Lt. Choi was targeted for trial. Out of 3 charged, Lt. Choi was disallowed “post-and-forfeit” diversion.
The prosecution wasted thousands of hours and dollars on this free speech circus. Now the Stay Away Restraining Order is lifted. I am free to help protestors for any worthy causes make their voices heard. Today we define justice as a verb. For in the very pursuit, there is justice.
Thank you to the Law Offices of Jon W. Norris, The Law Offices of Lynne Bernabei, Attorneys Mark Goldstone, Ann Wilcox, CPT James E. Pietrangelo, Arthur Spitzer of DC ACLU, and everyone of the lawyers who stepped up to help. To those who did not, Let’s see what we can all do, together, to enact justice from this time forward. I appreciate the work of the prosecutors as well, for they do serve a very important purpose in our society. Thank you for your service.
One more trial: The Don’t Ask Don’t Tell Criminal Case still languishes in Federal Court.
Love is still worth fighting for.
Lt. Dan Choi