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Choi Appealing Conviction

by John Riley
Monday Apr 22, 2013

Prominent gay rights activist and former Army Lt. Dan Choi has filed notice with the U.S. District Court for the District of Columbia that he will be appealing his conviction on a charge of failing to obey the lawful order of a government employee or agent.

At Choi's trial on March 28, Magistrate Judge John M. Facciola found Choi guilty and fined him $100. At the time, Choi told Facciola he was refusing to pay the fine. But Choi's guilty verdict came after a nearly three-year struggle in the courts - including a 19-month delay on the part of government prosecutors - following his arrest for chaining himself to the White House Fence during a 2010 protest against the military's anti-gay ''Don't Ask, Don't Tell'' (DADT) policy, under which Choi had been discharged from the military.

In his April 5 filing, Choi said he would appeal Facciola's verdict - and all related rulings leading up to his conviction - as well as a writ of mandamus issued by Chief Judge Royce C. Lamberth, the U.S. District judge for the District of Columbia, which had ordered Facciola not to take into account whether prosecutors had engaged in selective or vindictive prosecution because Choi is gay and was protesting, in full military uniform, the now-defunct DADT policy.

Facciola had previously found there was possible evidence that the government may have engaged in selective or vindictive prosecution based on the content of Choi's exercise of free assembly and free speech. Had Facciola been able to allow Choi's lawyers to pursue that as a line of defense, Choi's lawyers would have been able to ask the government to provide more evidence of investigating whether higher-level officials advised subordinates to single out Choi by trying him in federal court instead of in D.C. Superior Court.

Choi was arrested two prior times for chaining himself to the White House fence and charged in D.C. Superior Court, but those charges were dropped after the D.C. attorney general's office determined that the ledge on which Choi and his fellow protesters had been standing when chained to the fence did not constitute part of the sidewalk.

While Choi defended himself at trial, his fellow arrestee and legal advisor, former Army Capt. James Pietrangelo II, filed an amicus curae brief March 28 that outlined multiple legal rationales for why Choi should be acquitted of the charges.

Since Choi's conviction, at least 20 of Choi's friends, acquaintances, fellow military members and fellow activists have written letters asking the court to overturn Choi's guilty verdict. Choi sent an email to supporters April 8 telling them about the status of his appeal and his mental health, and declaring that he would not pay the fine of $100.

''Late last week I filed my notice of appeal,'' Choi said in the email. ''After this, our case might 'remand' to a new trial without 'mandamus' censorship. Then it can die or go up to the D.C. Circuit (3 Judges), then Rehearing en banc (8+ Judges) and perhaps the Supreme Court.''

Choi also told his supporters that he was seeking treatment for mental health issues stemming from his post-traumatic stress disorder, but would continue to fight, saying he wouldn't be able to forgive himself if he had paid the fine for protesting lawfully. He also added that his future re-enlistment, though slowed by hospitalizations to treat those mental issues, would not be hindered by his appeal.

''While I thank you for your personal concerns, I have decided that we can never pay a $100 fee for freedom, no way can we afford such a tax of liberty and justice,'' Choi said in the email. ''We battle on behalf of our future brothers and sisters, sons and daughters, who also deserve a world of equality. Thank you everyone who kept the faith; I couldn't have come this far without you. Let's keep the faith just a little bit more because 'Love is still worth fighting for.'''

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  • WayGay, 2013-04-22 15:40:06

    While I appreciate Lt. Choi’s efforts for the LGBT community he was a commissioned officer. And junior officers don’t chain themselves to the commander-in-chief’s fence.

  • Wayne M., 2013-04-24 18:49:16

    When he chained himself to the White House fence, Lt. Dan Choi did the right thing in defence of the responsibility of members of the LGBT community to serve their country honestly and openly. However, he also acted in full respect of military honour. In the military forces, both enlisted personnel and commissioned officers are honour bound to act honestly and truthfully at all times. Unfortunately, the old DON’T ASK; DON’T TELL (just lie) law made it impossible for LGBT military personnel to be honest and truthful and still serve their country. Lt. Choi did the right thing for another reason too. Anyone who has read about the Nuremburg trials knows that military personnel are expected in international law to refuse to follow any law or orders that are unjust. Lying about who you are, even if forced to do so to remain in the armed forces is still lying and any law that requires a soldier to lie is unjust. I truly do wonder if DADT would have been repealed had not men of courage such as Lt. Dan Choi not acted so boldly. Maybe it would have been, but somehow, I believe the politicians, even progressive politicians, would have been very happy just to leave things the way they were to avoid controversy - especially with elections coming up.

  • WayGay, 2013-04-25 11:53:24

    You confuse the actions of a private citizen to those if a commissioned officer. Lt. Choi was not a private citizen when he did this. In the same way Gen. McCrystal lost his job for bad mouthing the commander in chief Lt. Choi’s actions were equally insubordinate. And Nuremberg really? You’re comparing his action to Nazis? Lt. Choi did the wrong thing and no matter what spin you out on it his conduct was unbecoming of his uniform and oath of office he swore when he was commissioned. Listen, I think he is courageous for taking a stand, but the one he took reflected very poor choices on his part. He got his point across but he also disgraced his service in the process. And as a commissioned officer in the armed forces he doesn’t have the same rights if expression that a private citizen does.

  • , 2013-04-26 14:39:29

    It is apparent that he should not be allowed in the military. While some may commend him for standing up for his beliefs, it is apparent that those beliefs are more important to him than serving his country. The armed forces are no place for mavericks. I commend him for his service, but it’s now time to move on.

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