Justice is Blind and Gagged

Michael Bronski

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.

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 Wyoming’s 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 doesn’t 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

To object to
the gag order placed on McKinney and his lawyers does not alleviate or modify
his guilt. But this deprivation of free speech—granted "freely chosen"
under the threat of death—is a dangerous precedent. In reading his six-page
statement after McKinney’s 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."

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, I’m
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
symbol—some say a martyr, putting a boy-next- door face on hate crimes.
That’s 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 won’t be a
symbol. No years of publicity, no chance of a commutation, no nothing—just 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.

Michael Bronski has written numerous books and articles on culture and gay and
lesbian issues. He has been a regular contributor to
since 1988.