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Justice is Blind and Gagged
With a final flurry of media attention the trials of Aaron McKinney and Russell Henderson for the brutal murder of Matthew Shepard are now over. But in the quiet after such an emotional social and political storm, two things have become evident. The first is that the image of Matthew Shepard as the innocent victim of this murder began to slowly be replaced by the even more innocent victims: his parents, Judy and Dennis Shepard. Concurrent with this new media focus, the Shepards, in collusion with Cal Rerucha, the Albany Country prosecutor, became so integral in the sentencing phase of the trial that they called for and received the most outrageous, and probably unconstitutional, conditions on McKinneys plea bargain to avoid the death sentence.
On the surface, Matthew Shepard was the "perfect" gay male victim for the media: he was young, white, educated, upper-middle class, and photogenic. But beneath this there was always a degree of discomfort. For the first months after his death certain details (sometimes based on reported fact, more often on rumors) kept creeping into print: he had a history of making unwanted passes at men he did not know, he was HIV+, he had already provoked an attack by sexually harassing a bartender friend. These stories reached their apotheosis in Aaron McKinneys charge that Shepard had groped him. The unavoidable subtext here was that Matthew Shepard was a sexually active gay man, and not so innocent after all. To their credit neither the media nor the judge used these stories to alleviate the seriousness of the crime. But in our culture gay sexual activity is always suspect. Matthew Shepards sexuality was the one flaw in an otherwise flawless media profile of innocent victimhood.
As the trial progressed, Shepards parents became increasingly vocal. News footage of them outside the courtroom, public statements supporting hate law legislation, numerous print and electronic interviews of them discussing how they came to terms with their loss all propelled Judy and Dennis Shepard into the spotlight. They became the new victims of Russell Henderson and Aaron McKinneys anti-gay violencethe grieving, straight, married, socially acceptable, sorrowful parents whose loss epitomized the horrors of gay hatred.
While the media ascendency of the Shepards as victim was understandable and the outpouring of sympathy for them was a genuine response to their loss, it also played into a dangerous trend in U.S. legal practice. Throughout Hendersons and McKinnys trials prosecutor Cal Rerucha worked closely with the Shepards in crafting the plea bargain and sentencing agreement. Rerucha claimed that he was mandated to do so under Wyoming lawan example of the expansive "victims rights" laws that have been increasingly implemented over the past decade.
How did the Shepards get to play such an important role in Henderson and McKinneys trial? Almost immediately after Matthew Shepards death the case, and subsequently the trial, became a national event: a morality play to expose homophobia. Most news reports referred to his death as a lynching or a crucifixion (it was technically neither), and sometimes both.
For the queer community the McKinney and Henderson trial became a symbolic trial about homophobia. Just as the Eichmanns trial in 1961 represented, for many Jews, a trial about anti- Semitism throughout history, and the O.J. Simpson trial became (for some) about racism and/or violence against women, the McKin- ney and Henderson trials were not simply about the two defendants. But it is often difficult to pursue justice when a courtroom drama takes on such larger symbolic meaning. Working with the Shepards Cal Rerucha offered Aaron McKinney a plea bargain in which he would not face the possibility of the death sentence if he agreed to certain conditions in the sentencing agreement. These included the provision that McKinney could not appeal his sentence; he could not talk to the news media about the case nor could his public defender, the mitigation specialist, and other members of the defense team; any proceeds arising out of the case for McKinney must be given to the Matthew Shepard Foundation; the defense could not present any evidence reflecting on the character of the victim and could not oppose introduction of Dennis Shepards opinions concerning the death penalty; the Shepard family would be allowed to address the judge, jury, and McKinney in open court during the sentencing phase of the trial.
Some of these conditions, such as waiving the right to an appeal, have become commonplace as plea bargaining has increasingly become the means of moving cases through an overcrowded court system, even though some legal scholars consider them unconstitutional. But other conditions, the wholesale impingement of free speech on McKinney and his lawyers, are extraordinary and possibly unprecedented. Both of Wyomings major newspapers have editorialized against this condition, as have First Amendment advocate publications such as Freedom Forum Online. The problems that arise from the gag order are manifest. It is possible that we, as a culture, might learn more about homophobia by hearing what McKinney and Henderson had to say after the trial was over. Enforcement of the gag order raises extraordinary legal problems. As Paul McMasters explains in Freedom Forum: "Certainly adding a few years to the two life terms McKinney will be serving doesnt give a judge much leverage if McKinney violates the agreement. So what does a judge do? Deny access to the prisoner by family, friends, lawyers, and journalists? Punish lawyers who talk out of school? Impose prior restraints on the press? Allow the Shepards to successfully sue a news organization that published or broadcast stories thought to be in violation of the agreement?"
McMasters notes that "the American public systematically and increasingly is being excluded from the criminal justice public-policy debate. State and federal prison officials are establishing policies that deny public and media access to prisoners. Courts are gagging defendants, prosecutors and attorneys in trials; sealing court documents; and restricting public scrutiny in a variety of ways."
To object to the gag order placed on McKinney and his lawyers does not alleviate or modify his guilt. But this deprivation of free speechgranted "freely chosen" under the threat of deathis a dangerous precedent. In reading his six-page statement after McKinneys sentencing, Dennis Shepard stated "At no time did Mr. Rerucha make any decision on the outcome of this case without the permission of Judy and me. It was our decision to take this case to trial just as it was our decision to accept the plea bargain today and the earlier plea bargain of Mr. Henderson."
"Victims rights" measures were instituted to legally mitigate some of the aftershocks of pain that violent crime can cause, but when they are used to rescind the rights of the convicted, they are harmful to the legal system
Later in his speech, addressing McKinney, Shepard said: "I...believe in the death penalty. I would like nothing better than to see you die, Mr. McKinney. However, this is the time to begin the healing process.... Mr. McKinney, Im going to grant you life, as hard as it is for me to do so, because of Matthew." It is a moving sentiment, but politically and legally appalling. Dennis Shepard has no legal or moral standing to grant Aaron McKinney life or secure his death under the law.
Yet Dennis Shepard went even further in his courtroom speech: "Matt became a symbolsome say a martyr, putting a boy-next- door face on hate crimes. Thats fine with me. Matt would be thrilled if his death would help others. On the other hand, your agreement to life without parole has taken you out of the spotlight and out of the public eye. It means no drawn out appeals process, chance of walking away free due to a technicality and no chance of a lighter sentence due to a merciful jury. Best of all you wont be a symbol. No years of publicity, no chance of a commutation, no nothingjust a miserable future and a more miserable end. It works for me."
It is not the vindictive anger here that is so shocking. The problem here is not that Dennis Shepard had these feelings, but that he had the legal help and recourse to enact them.
Like any loving parents the Shepards want to make sure that their son even in death is treated with respect, but in this case both they, the media, and the prosecutor have gone too far. Z
Michael Bronski has written numerous books and articles on culture and gay and lesbian issues. He has been a regular contributor to Z since 1988.