Dr. Jillian T. Weiss

Prosecutor Disrespects Lt. Choi, Undermining Her Own Case

Filed By Dr. Jillian T. Weiss | August 31, 2011 9:00 AM | comments

Filed in: Politics
Tags: Angela George, Dan Choi, Don't Ask Don't Tell, James Pietrangelo, White House protest

Angela_George.jpgUPDATE: 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


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This is turning out to be more interesting than I had expected. I have to wonder, though, whether the Justice Department is still completely full of Bush-era political hacks -- George doesn't seem to be too savvy about life in the real world.

I almost wonder if Ms George is intentionally trying to undermine her own case, fully aware of the injustice being done. If not, she should consider that in 1917 several women were arrested at almost exactly the same spot in front of the White House for fighting for the right to vote. She should realize the debt that she herself owes to these activists of a bygone era, and understand that as long as there is injustice in this world that there will be a need for direct acts of civil disobedience. I know from my own personal experience that the police and court system are hardly sympathetic to those of us fighting for LGBTQ rights and that they take extra care to inflate charges against us and make sure that our experience with them is 'memorable' - this is also an expression of homophobia, and in itself justifies continued civil disobedience. Ms. George should consider what her life might be like were it not for those far more courageous than herself.

I almost wonder if Ms George is intentionally trying to undermine her own case, fully aware of the injustice being done. If not, she should consider that in 1917 several women were arrested at almost exactly the same spot in front of the White House for fighting for the right to vote. She should realize the debt that she herself owes to these activists of a bygone era, and understand that as long as there is injustice in this world that there will be a need for direct acts of civil disobedience. I know from my own personal experience that the police and court system are hardly sympathetic to those of us fighting for LGBTQ rights and that they take extra care to inflate charges against us and make sure that our experience with them is 'memorable' - this is also an expression of homophobia, and in itself justifies continued civil disobedience. Ms. George should consider what her life might be like were it not for those far more courageous than herself.

Frankly I'm disgusted that Lt. Choi was arrested at all, but for a civilian to strip a veteran of their rank insignia - to my mind - reeks of not only insult, but assault as well. I did not serve in the military, but dozens of the men in my family for the past 3 generations have. I can only imagine their response to this cowardly and offensive act - my uncle, the ex-Seal, would have pounded him into the dirt and then joined Lt. Choi on the fence. None of the men in my family were Gay, but they all served proudly and served beside Gay and Lesbian soldiers. Not one, while they still lived, supported DADT - in fact my brother, who served his term as a F-18 mechanic, called the policy "asinine."
As to the accusation of Lt. Choi as a "glory hound", how dare anyone call him that? We, who owe any and all of our freedoms to those who chained themselves and marched in the streets, should honor a man who has the courage not only to put his life on the line but to stand in front of the nation he defends and say "this is wrong, this is not what I fought for."
Now excuse me, I must get back to my coffee - it is far too early in the morning for this old drag queen to be hauling out my bitch-pumps.