UPDATE: Judge allows "vindictive prosecution" defense: http://www.metroweekly.com/poliglot/2011/08/choi-trial-put-on-hold-after-j.html
The most interesting report from Day 2 of the prosecution of Lt. Dan Choi is the disrespect shown by United States Attorney Angela George towards Lt. Choi and a witness, Capt. James Pietrangelo.
As reported in MetroWeekly:
"Tempers flared when Feldman and George sparred over George's refusal to call Choi and Pietrangelo by their ranks, referring to them as "Mister" because "they are not in the military anymore." Magistrate Judge John Facciola resolved the issue by ordering George to address them by their highest achieved ranks."
In the context of a courtroom, where every word and glance has heightened significance, and experienced attorneys take great care to craft their presentations with infinite attention to detail, the significance of this disrespect should not be underestimated. Ms. George was not acting on a spur of the moment impulse in jousting over this issue. Rather, it is an attempt to strip Lt. Choi of the mantle of the First Amendment freedom of speech by the subtle suggestion that he has been deceitful in allowing himself to continue to be addressed by his military rank of Lieutenant.
"You're not really a lieutenant any more, Mister Choi, are you?" one can almost hear Ms. George saying, with an accusatory pointing finger and narrowed eyes.
But in so doing, she ran a risk, as double-edged swords are to be found everywhere in the courtroom. That risk is the suggestion that the arrest and prosecution are motivated by the content of Lt. Choi's message, rather than the traffic-obstructing qualities of a body standing in front of a fence. In First Amendment jurisprudence, restrictions on speech not motivated by distaste for the message are permitted. "Time, place and manner" restrictions -- neutral rules about when, where and how protest messages are delivered -- are not violative of the First Amendment. If the arrest was motivated by such neutral, non-content-based consideration, then the First Amendment does not come into play.
By suggesting that she thought that Lt. Choi and Capt. Pietrangelo were not really deserving of the military titles, she also may have communicated to the judge the idea that the prosecution is motivated by distaste for these poseurs' anti-military (in her opinion) message. The judge's slap down was a potential signal that he received George's message and did not approve.
She also suggested, not so subtly, that Lt. Choi is a glory hound. The Associated Press reported that she suggested Choi "deliberately chose to get arrested to draw attention to himself and could have opted for less provocative methods -- such as marching and holding signs - to convey the same message." One implication of this line of questioning is that Lt. Choi was attempting to give a high profile to his message by his choice of methods. If the judge sees it that way, then George has undermined her argument that the arrest was content-neutral. And, of course, had Lt. Choi followed George's advice to march and hold signs on the White House sidewalk, then he would certainly have been in violation of the officer's order to "get off the sidewalk."
Lt. Choi banged home the implication of content-based regulation in violation of the First Amendment by his answer to George, as reported by the AP:
"But Choi strongly disagreed. He said was flabbergasted he was on trial in the first place when people went to the White House to cheer the U.S. military raid that led to the death of terror mastermind Osama bin Laden. He said those people gathered at the same fence but never faced any sanctions."
"What's the difference?" Choi demanded of George at one point. "You have not given me a reason why my free speech should be curtailed and their free speech should be amplified."
That answer clearly undermined the prosecution's argument by demonstrating that others had undertaken similar actions on the White House sidewalks, but because their message was approved, no arrest and no prosecution was undertaken.
It also didn't help the prosecution's case when Lt. Choi testified that "he had multiple run-ins with one particular detective with the U.S Park Police, who insulted him and his fellow protesters by stripping them of their rank insignia." Lt. Choi's attorney said he planned to call the detective in question to testify on Wednesday morning.
"In the military, stripping someone's rank is the biggest insult, because it makes somebody your inferior," Lt. Choi said. This gives fuel to the argument that the arrest was motivated by distaste for Lt. Choi's message that the police felt was disrespectful for the military. That would tend to show that they also didn't like Lt. Choi's message, and that was a reason motivating the arrest.
Of course, George called five Park Police officers and a U.S. Park Ranger as government witnesses on Monday in an attempt to show that the motivation was not based on the message, but rather on content-neutral regulations. As reported by the Washington Blade: "Under questioning from George, they testified that they had no intention of singling out the protesters for their political beliefs or because of their sexual orientation." The crux of this case is whether the judge will believe that.
Jillian Weiss is a member of the Board of Directors of GetEqual, which was involved in organizing some of the White House protests regarding DADT.
imgsrc: Chris Geidner