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Plea Bargain - 11 1/2 years for the Life of a Soldier

Plea Bargain Agreement Drops Substantive Charges Against Soldier

Servicemembers Legal Defense Network (SLDN) today (01/08/00) decried the lenient plea agreement given to Specialist Justin Fisher for his role in the murder of his roommate Private First Class Barry Winchell at Fort Campbell, KY. SLDN Co-Executive Director Michelle Benecke said, "The Army swept under the rug serious charges against Specialist Fisher in this anti-gay hate crime. We want to know the truth about why the Army granted such a lenient deal to the soldier who instigated the murder of Private First Class Barry Winchell. The plea agreement is a travesty. SLDN will continue to press the military to protect our men and women in uniform regardless of their sexual orientation."

Today, Specialist Justin Fisher, 26, was sentenced to 14 years in prison by a military judge for his role in Private First Class Winchell's murder at Fort Campbell, KY. Under the terms of the plea agreement, however, the sentence was capped at twelve and one-half years. At most, Fisher will serve eleven and one-half years after taking into account time served and credit for "good time." Fisher will be eligible for parole in approximately four years.

Under today's agreement, Specialist Fisher pled guilty to two counts of obstructing justice, three counts of making false statements under oath and one count of providing alcohol to a minor. Without the plea agreement, the maximum sentence for these charges is twenty years in prison.

The original charges against SPC Fisher included being a principal to premeditated murder by encouraging another soldier, Private Calvin Glover, to attack Winchell, and acting as an accessory after the fact. "It raises serious questions," stated Benecke, "that the Army would choose not to pursue these charges despite clear evidence that Fisher goaded Private Glover into attacking Barry Winchell. Specialist Fisher has not been held accountable for his role in this heinous crime."

Private Glover, the other defendant in this murder case, was convicted on December 9, 1999, of premeditated murder for beating Private First Class Winchell to death with a baseball bat while Winchell slept on a cot outside his room. Private Glover is currently serving a sentence of life in prison with a possibility of parole in ten years. The Army prosecutor in Private Glover's case relied significantly on testimony that Glover killed due to his hatred of gays.

At hearings held this summer for Glover and Fisher, and at Glover's court-martial, soldiers testified that Winchell faced daily anti-gay harassment for four months prior to his murder. According to testimony at Glover's court-martial, Fisher played a significant role in Winchell's murder, including: handing Glover the baseball bat used as the murder weapon; washing the blood off the bat after the murder; planning how to cover up the crime; taking the lead in taunting Winchell about being gay and spreading rumors that Winchell was gay; attacking PFC Winchell once before and smearing his blood on the back of their barracks room door 'as a reminder'; and encouraging Glover to kill Winchell.

"We are appalled by the fact that Specialist Fisher was so instrumental in Private First Class Winchell's murder, yet all charges directly related to the murder were dropped in a plea bargain agreement. This agreement is just another example of how the command at FortCampbell failed Barry Winchell," said Benecke. "Major General Clark and his chain-of-command at FortCampbell are responsible for the anti-gay climate and the many violations of the "Don't Ask, Don't Tell, Don't Pursue" policy in this case and other cases. Major General Clark must be held accountable for what has happened here."

According to SLDN Co-Executive Director, C. Dixon Osburn, "PFC Winchell's murder could have been prevented by the command at Fort Campbell. As long ago as 1995, SLDN warned that if the military did not take corrective actions, deaths of actual and perceived homosexual service members, like slain sailor Allen Schindler, would occur again. The Department of Defense has failed its service members."

In each of the past six years under "Don't Ask, Don't Tell, Don't Pursue," SLDN has warned military leaders about increasing anti-gay harassment. Harassment soared 120% in 1998 alone, the last year for which figures are available. Due to SLDN's efforts to stem anti-gay harassment, the Pentagon released a memorandum in 1997 that seeks to protect service members who report anti-gay harassment from retaliatory investigations under "Don't Ask, Don't Tell, Don't Pursue." Called the "Dorn Memo" after its author, then-Undersecretary of Defense Edwin Dorn, the memorandum was never sent to commanders in the field despite repeated promises to SLDN by the new Undersecretary of Defense, Rudy DeLeon. Only after recent testimony in hearings for Private Glover and Specialist Fisher highlighting the harassment PFC Winchell faced, did the Pentagon send out an updated version of the Dorn Memo to the services.

SLDN launched an investigation into the murder of Private First Class Barry Winchell shortly after he was attacked on July 5, 1999, at the request of the Lesbian and Gay Coalition for Justice and Fort Campbell soldiers who were concerned that the Army was covering up a hate crime. The Army originally downplayed the brutal attack on Winchell, calling it a "physical altercation" in the barracks despite the fact that Winchell was attacked while sleeping. Without having investigated the possibility, the Army denied there was any evidence of a hate crime. SLDN sent representatives to FortCampbell and Nashville, TN, and found that concerns about a possible hate crime were well-founded. SLDN then pressed the Army to conduct an appropriate investigation. Ultimately, evidence that this murder was a hate crime was introduced at Glover's court-martial and led to a conviction of premeditated murder. PVT Glover is currently serving a sentence of life in prison with a possibility of parole in ten years.

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