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 McKinney’s 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 McKinney’s 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 Shepard’s sexuality was the one flaw in an otherwise flawless media profile of innocent victimhood.

As the trial progressed, Shepard’s 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 McKinney’s anti-gay violence—the 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 Henderson’s and McKinny’s 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 law—an example of the expansive "victim’s 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 McKinney’s trial? Almost immediately after Matthew Shepard’s 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 Eichmann’s 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 Shepard’s 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 Shepard’s 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.