Railroading
OCTOBER 20, 1981
HANCOCK FIELD
SYRACUSE, NEW YORK
Historically, for the status inherent in it, the Office of Special Investigations relished the opportunity to add an officer’s scalp to its belt. At base command, charges against officers—particularly charges of homosexuality—were pursued much more vigorously than against enlisted personnel. So the current had been flowing against twenty-four-year-old Lieutenant Joann Newak for some weeks, as court records later showed.
The investigation had begun in the spring with the arrest for drunk driving of a security policeman named Donna Ryan. The arrest had cost Ryan her job and to redeem herself she volunteered to become an OSI informant, offering information about a group the OSI was always eager to investigate: homosexuals. At a women’s softball game, Ryan met Joann Newak, who she thought to be a lesbian. She befriended Newak and learned that Joann had a relationship with a senior airman named Lynne Peelman. Quietly, Ryan gathered more evidence. At a party in Newak’s home, she saw people smoking marijuana. From Newak’s dresser, she took a pill that Joann later said was an amphetamine. When the OSI finally informed Newak and Peelman that they were under investigation for homosexuality, both denied all charges.
The Air Force would have preferred that Newak resign and quietly slip away. But when Newak learned that she was to receive a bad-conduct discharge, she refused to resign. The Air Force tried to frighten her into submission with a laundry list of criminal charges. Laboratory tests revealed that the alleged amphetamine was not an illegal substance but an over-the-counter diet pill that could be purchased at any Walgreens; the Air Force, however, maintained that because Newak appeared to believe that it was an illegal drug, she could be charged with possession of narcotics. There could be other felony charges involving the possession of marijuana and multiple counts of sodomy. On top of everything, Newak could be charged with “conduct unbecoming an officer and a gentleman.” Still, she would not resign. At a preliminary hearing in September, the Air Force had found there was enough evidence to proceed with a prosecution.
Captain Raymond Smith represented both Lieutenant Newak and Airman Peelman. Major Carlos Torres was the Staff Judge Advocate for Hancock Field. Air Force documents record an astonishing conversation between the two. Torres suggested providing Peelman the promise of immunity from prosecution if she would testify against Newak and charge that the two had committed acts of sodomy. As Peelman’s lawyer, Smith knew that it would be best for his client to accept the deal; as Newak’s attorney, he knew that if Peelman agreed to the deal, Newak could well end up going to jail.
Most lawyers negotiating immunity in exchange for testimony are guided by the apprehension that the testimony might undermine their client’s credibility, but Smith had no such anxiety. As Newak’s lawyer, Smith knew precisely what arguments she would offer the court to counter any charges made under immunity by Peelman. It was with this knowledge that Smith cut the deal with Torres that afternoon.
Later, when Smith explained the situation to Peelman, he warned her not to have anything more to do with Newak. She was “going down the tubes,” he said—odd words from Newak’s lawyer, but in this case a knowledgeable assessment.
Three days after his meeting with Major Torres, Captain Smith withdrew from representing Joann Newak in her court-martial, citing “conflict of interests.” By then, however, the deal was done and the prosecution had the evidence it needed to send Joann Newak to jail.
When it works properly, the military judicial system can be a model of fairness and justice. Some lawyers argue that sometimes it is even fairer than civilian courts. The reading of rights, for example, was required by military judges long before civilian courts mandated such warnings. Court-martial juries are made up entirely of officers, ensuring that the accused are judged by a panel made up entirely of college graduates, a rare occurrence in the civilian world.
But there is another side to military justice. As a system completely segregated within the uniformed subculture, military justice is vulnerable to a command structure that believes in higher priorities than the adherence to judicial principles. It is in such times that, as Clemenceau once observed, military justice is to justice what military music is to music.
In the 1980s, the high priority that military commanders placed on weeding out homosexuals created just such a situation. While military judicial and administrative procedures had never been kindhearted to homosexuals, they grew even more hostile during the ferocious efforts to rid the military of gays in this decade, engaging in appalling abrogations of the most rudimentary notions of evidence, fairness, and civil rights. At times, administrative boards became little more than kangaroo courts.
Checks existed within the military judicial system to correct these kinds of injustices, and, by the end of the decade, military appeals courts found themselves overruling many of the convictions of homosexuals meted out by courts-martial. One cruel twist in the military system, however, rendered such reversals hollow. While civilian defendants may retain their freedom while they appeal convictions, military personnel must serve their jail time during the sluggish process of military appeals. Vindication does not usually occur until after the defendant is already out of jail and on parole.
OCTOBER 28, 1981
FORT LEWIS
TACOMA, WASHINGTON
The administrative separation board meeting to decide whether Staff Sergeant Perry James Watkins should be discharged from the United States Army convened at 9:00 A.M. on a cold, drizzly morning. Days before the hearing, the Army informed Perry’s lawyers that they would call two witnesses to testify that Watkins had made homosexual advances toward them. The federal judge had said she would not uphold a discharge without proven charges of homosexual acts, so the Army was going to produce them. But Perry had never heard of one of the witnesses, and the other was a private who had been in Perry’s company but never an object of his affections.
Private First Class David Valley testified first. On his first day under Watkins’s supervision, some eighteen months earlier, he said, the sergeant had asked him to move in with him. Watkins recalled telling the private he was free to move off base if he wanted to get away from the cramped barracks, but he was certain he had not asked Valley to move in with him. Perry was living with a boyfriend then and had no interest in a complicated threesome.
Perry’s attorney asked Valley whether he had considered it a come-on when Watkins said he could move off base. Valley said no, nor did he give it any more thought until some of the other guys in the unit mentioned later that Perry was gay. Watkins’s lawyer asked Valley whether he ever thought that Watkins wanted to have sex with him. Had he ever made a pass?
“No, I can’t say that, sir,” Valley said.
He added that he would have no problem working for Watkins again and that he did not think Perry’s homosexuality interfered with his work performance. All Watkins had ever done, he said, was tell him he could move off the base, adding that sometimes, “He would stare at me and smile.”
Meanwhile, Watkins’s lawyer learned that Private Andrew Snook, the soldier Perry did not know, would testify that a black staff sergeant had picked him up hitchhiking on July I, 1981, at Fort Lewis and had put his hand on his thigh. Since Watkins did not pick up hitchhikers, much less make passes at them, Perry suspected that the proposition might have been made to Snook by some other black staff sergeant.
Watkins’s lawyers asked that Snook identify Perry from among a group of black soldiers in a lineup before they met in the courtroom. The prosecution argued vociferously against it, but the board agreed. During the lunch break, Perry stood in a lineup. Private Snook was not able to identify any of the men as the one who had made a pass at him.
Undaunted, the prosecutor, Captain James Larson, put Snook on the stand that afternoon and asked him directly whether Watkins was the man who had picked him up and put his hand on the private’s thigh four months earlier. Again, Snook said he could not tell. In fact, he could not remember much about the incident except that the man was black, a staff sergeant, and driving a light-colored car with light-colored license plates. He could not remember what state the plates came from. To tell the truth, he had not even thought much of it at the time, but he had mentioned it to someone at work who was from Perry’s company, and that man had mentioned it to Perry’s supervisor, Captain Hugh Hansel Bryan.
Captain Bryan took the stand. No matter what Snook said, Bryan insisted, the man who had made a pass at him was Staff Sergeant Watkins. He had investigated the matter “thoroughly,” he said, and “it was definitely Sergeant Watkins.” Bryan added that he had also talked to Snook’s company commander, who said Snook was a “very good soldier” and a reliable source.
At this comment Captain Walter Johnson, one of the three officers on Watkins’s discharge board, stiffened. Had Bryan talked to Snook’s commander on the telephone or in person? Johnson asked.
“It was in person, on a one-to-one basis in his office,” Bryan said.
Johnson was perplexed because he was Private Snook’s commanding officer, and he did not recall ever talking to Bryan about this incident.
“It was not yourself,” Bryan admitted.
Furthermore, Johnson told the hearing that Snook was a “below-average” soldier and allowed that he would take anything the private said “with a grain of salt.”
Under further questioning, Bryan admitted that there could be thousands of black staff sergeants stationed at the sprawling Fort Lewis and that among them there could be hundreds who drove light-colored cars. Then he had to admit that he had somehow thrown out the statement he had taken from Snook when the incident occurred several months earlier. Captain Palmer Penny, an Army lawyer with the post headquarters company, testified that when Bryan brought the Snook allegations to his attention in the summer, he had bluntly advised him, “This isn’t going to hold up in court,” that the evidence “wasn’t sufficient.” And Penny added that he remained personally “unconvinced” that the man who made the alleged advance on Snook was Watkins.
In fact, Watkins not only had an alibi but several thousand witnesses to it. Like just about every other able-bodied soldier at Fort Lewis, he had been on the parade ground on the afternoon that the alleged advance occurred, practicing for the post’s Organization Day ceremonies.
In his defense, a series of character witnesses testified to Watkins’s superiority as a soldier. One lieutenant colonel called Watkins an “excellent” soldier, adding that he would be welcome back into his command at any time, even if he was homosexual. One major testified that while it was his professional duty to support Army policy, “Personally, I support Sergeant Watkins.” A sergeant major dismissed the whole hearing as nonsense, given the fact that people had known for years that Watkins was gay. “This is not some great discovery that just came about,” he said.
Regarding the informal meeting at the commanding general’s house where the character of Watkins’s discharge had been discussed, another officer testified he could not recall any details of the evening.
In the end, the prosecutor entered as evidence the statement that Watkins had signed in 1968 admitting that he was gay. Ultimately, it was this statement and the admissions Perry had made during his preinduction physical in 1967 that represented the only evidence of his homosexuality.
Despite the weakness of the case, prosecutor Larson argued that Watkins should be separated immediately and denied an honorable discharge. He pleaded with the panel to consider the impressionable young recruit who might come under Watkins’s supervision: “He’s 17, 18, 19, maybe 20 years old. He’s away from home, perhaps for the first time in his life. His family is a thousand miles, two thousand miles, perhaps even an ocean away.… He’s at a critical stage in his physical and psychological development.… Gentlemen, do you want to entrust the development of that young soldier to Staff Sergeant Watkins? I don’t think you do.”
Larson also insisted that Watkins was indeed the soldier who had made a pass not only at Private Snook but probably at many others who might have been seduced into homosexuality by the staff sergeant. “How many more soldiers have accepted the proposition that may not have been homosexual?” Larson asked. “Again, your private, the young man who doesn’t know; the young man who’s curious, the young man who is away from home.”
Jim Lobsenz advanced his constitutional arguments against the Pentagon’s antigay policies, arguing that they violated Perry’s right to free speech and privacy. Furthermore, he said, “If the Army makes a promise to a man that you can enter the Army, be a homosexual, you can still have a career with us, they cannot turn around some 14 years later and say we didn’t mean it. Now that you’ve invested 14 years of your life in an Army career, we are going to go back on our word and throw you out for something that we’ve known all along.”
Watkins’s military lawyer, Lieutenant Joel Courtemanche, called Snook’s testimony a “farce” and dismissed the whole hearing as “a vicious attempt at railroading, gentlemen. Again, I use the term railroading. It’s an Army term. If you want to get somebody out of the Army, you just make things so unbearable that you just wait for him to screw up. When he does, you got him and you nail him. That is what we had. They were trying to nail Staff Sergeant Watkins.”
In a three-minute session at the end of the second day of the hearing, the panel chairman read the decision of the Administrative Discharge Board. “Staff Sergeant Perry J. Watkins is undesirable for further retention in the military service because he has stated that he is homosexual,” he said.
The panel did not find that Watkins was guilty of any homosexual acts, only that he was indeed homosexual, as defined by the new regulations. Even that conclusion was confirmed by a vote of only two to one, with one panel member arguing that the prosecution had not established Watkins’s “intent” to commit homosexual acts in the future. Lobsenz counted the ruling as a victory, since it meant that the Army had proven nothing new against Watkins beyond what it had already charged him with in 1975. It was a clear case of double jeopardy.
Two days later, federal judge Barbara Rothstein ruled just that, disallowing the Army from separating Watkins. To this, an Army lawyer responded that even if the Army did retain Watkins for now, they would simply deny him reenlistment when his current term was completed in 1984. Since the Army raised the issue, Rothstein said stiffly, perhaps the lawyers should prepare arguments on that eventuality now. Under Army regulations, if a soldier could not be administratively separated for a given reason, neither could he be denied reenlistment for that reason. Watkins would stay put.
The Army chose not to appeal Rothstein’s order, and so on October 31, 1981, Perry Watkins continued to be the first openly gay man to serve publicly in the United States Army. The next morning Perry returned to work in the personnel office and life for Watkins and for the Army returned to normal.
MARCH 1982
HANCOCK FIELD
SYRACUSE, NEW YORK
Joann Newak sat absolutely still.
She had known hard times; her dad, a TV repairman, had died of a heart attack when she was a girl, and her mother had raised Joann and her two sisters on the modest salary of a registered nurse. A cheerful disposition and a sunny smile seemed the antidote to adversity, and Joann held on to these and excelled in academics and athletics at her high school in Vandling, Pennsylvania, and made her way through Marywood College, a Catholic school in Scranton. She had graduated in 1979 with her bachelor’s degree in physical education and a teaching certificate, then had joined the Air Force.
After Officers’ Training School, assigned to the Twenty-first Air Division at Hancock Field, she had excelled at all she did for the service; she loved the Air Force and looked forward to a career in uniform. Her supervisors extolled her, as well; her officer evaluation forms were thick with superlatives and suggestions that she be promoted quickly. And then came the investigation, just two years into her service, and now she was sitting in a courtroom listening to the court-martial verdict.
“Guilty,” said each of the four panel members: guilty of a total of eleven felonies. Joann was convicted of three counts of sodomy with Lynne Peelman, who had testified against her. Each crime had occurred off the base in the privacy of the women’s own bedroom, between consenting adults, but each count represented a violation of Article 125 of the Uniform Code of Military Justice, punishable by five years at hard labor in prison. Donna Ryan’s assertions convicted Newak of possession of marijuana and the transfer of marijuana. Someone had seen her pass a joint to someone else. Newak was also guilty of possession and the transfer of a narcotic, because of the amphetamine that was not illegal but that was counted as a narcotic because Newak mistakenly thought it was. She was guilty of conduct unbecoming an officer and a gentleman, as well.
Joann’s civilian lawyer, Faith Seidenberg, had argued against a stern judgment, given that most of the charges against her client were no longer crimes in the state of New York. Smoking marijuana, for example, was no longer against the law. And state courts had thrown out the New York sodomy statute. No civilian court in the United States would convict a person of possession of a controlled substance that was not really a controlled substance just because they believed it was. In a state or even a federal court, the drug charges would have resulted in probation time at most, if charges were brought at all, which Seidenberg thought unlikely. But this was not a civilian court. This was the military, and Joann Newak was a convicted homosexual, and homosexuals were to be dealt with harshly.
The judge read Newak’s sentence: seven years at hard labor in the military prison at the United States Disciplinary Barracks at Fort Leavenworth.
Within weeks, Joann Newak was transferred to Fort Leavenworth, the 120-year-old Army post overlooking the Missouri River, not far from Kansas City. Like all new prisoners, she was strip-searched, tersely advised of the prison rules, and taken to her cell, where the steel door slammed shut behind her.