After three days of testimony Wednesday, a magistrate judge stopped the U.S. government’s trial of former Lt. Dan Choi to allow defense lawyers to argue that the gay activist had been targeted for “vindictive prosecution.”

U.S. Magistrate Judge John Facciola told prosecutors that defense lawyers had presented enough evidence for prima facie “vindictive prosecution,” according to Metro Weekly.

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The government will now have to turn over documents and evidence that could show Choi was singled out for federal prosecution instead of a district court trial.

Choi was arrested by park police on Nov. 15, 2010 for chaining himself to the White House fence during a protest of the military’s “don’t ask, don’t tell” gay ban.

The judge noted that after similar arrests in March and April, Choi’s case had been sent to district court, raising the possibility that the government was treating him differently this time.

“It is impermissible for the U.S. Government to prosecute differently on the basis of the content of First Amendment speech,” Facciola said.

Assistant U.S. Attorney Angela George told the court that the government would be filing a writ of mandamus against the judge at the U.S. Court of Appeals for the D.C. Circuit to prevent the “vindictive prosecution” defense.

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“They want him to go away,” defense attorney Robert Feldman told The Associate Press Monday. “He is the gay man who is finally attracting the attention.”