- Associated Press - Thursday, September 1, 2011

WASHINGTON (AP) — A gay former Army lieutenant who handcuffed himself to the White House fence to protest the military’s “don’t ask, don’t tell” policy may be closer to having charges against him dismissed after a judge put his trial on hold Wednesday.

Dan Choi, a West Point graduate who was dismissed from the Army after revealing that he is gay, has been on trial in federal court in Washington since Monday. A government prosecutor says he failed to obey an order to leave the White House in November 2010 when he and 12 others handcuffed themselves to the fence.

Police eventually removed the protesters using bolt cutters. If convicted, Mr. Choi faces a fine and up to six months in jail.

Mr. Choi and his lawyers claim he is being harshly prosecuted because he is gay and outspoken. They want the charge against him dismissed.

The protest was not Mr. Choi’s first time at the White House. He also was arrested in March and April 2010 for similar protests. In those instances, however, government lawyers brought charges against him in local court, where he would not have faced jail time. They then decided not to go forward with the cases.

On Wednesday, the judge presiding over the current case said he believes Mr. Choi has shown, at least preliminarily, that he is being treated differently because of the subject of his protests: “don’t ask, don’t tell.” President Obama put an end to the policy in July. As of Sept. 20, gay service members will be able to acknowledge their sexual orientation openly.

Magistrate Judge John M. Facciola said the testimony presented at trial suggested that “the nature of his speech or what he said” meant Mr. Choi was prosecuted differently, according to a transcript of the proceedings.

As a result of Judge Facciola’s statements, an lawyer for the government, Angela George, said she planned to have the judge’s actions reviewed by higher authorities, and Judge Facciola put the trial on hold for 10 days. In papers filed with the court, Ms. George said Mr. Choi was treated no differently than other similar protesters.

One of Mr. Choi’s lawyers, Robert Feldman, said he believed that the judge’s comments Wednesday mean that his client has “effectively won the case” and that the charges against him ultimately will be dismissed.

Twelve other demonstrators arrested with Mr. Choi previously accepted a deal with prosecutors, agreeing to plead guilty in federal court but serve no jail time if they were not rearrested within four months. Mr. Choi rejected a similar plea deal prosecutors offered Friday.

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