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By: Mark Fitzgerald

Plea Agreement Prevents Discussion Of the Case, Ever

Originally published Nov. 13 in Editor & Publisher magazine.

A little-noticed provision in the plea agreement that spared Aaron McKinney from execution in the murder of gay University of Wyoming freshman Matthew Shepard bans McKinney from ever talking about the highly publicized case with journalists.

?Mr. McKinney further agrees … to refrain from talking to any news media organizations regarding State vs. McKinney,? the agreement reads, in part.

The agreement also gags almost anyone else involved in the murder case from ever discussing it: ?Pursuant to this letter and the Wyoming Rules of Professional Conduct, the defense attorneys, including the public defenders’ office, the mitigation specialist, and any and all other members of the defense team agree to not comment to the news media regarding this case; other than, if appropriate, releasing a brief statement that counsel has agreed not to comment to the news media pursuant to an agreement with the Shepard family.?

Wyoming journalists and civil-rights activists are alarmed at the implications of the lifelong ban, which appears to be unprecedented in the nation.

?I’m extremely worried about it,? said Jim Angell, a veteran reporter who is now executive director of the Wyoming Press Association. ?You have to be very concerned about any kind of legal document that takes away a person’s right to speech, no matter who he is.?

?I have people saying to me all the time: I’ve never agreed with the ACLU, but this is too much,? said Billie Ruth Edwards, interim director of the Wyoming chapter of the American Civil Liberties Union.

In the plea agreement, McKinney, 22, will receive two life sentences and avoid a possible death penalty for his conviction in the murder of Shepard, who was beaten, pistol-whipped, and left to die beneath a cattle fence on the plains outside Laramie, Wyo. By Nov. 12, it was still not clear if the agreement has been signed by the trial judge, according to lawyers and journalists in Wyoming.

The gag provisions of the plea bargain reflect the demands made by Matthew Shepard’s family, according to his father, Dennis Shepard, and Cal Rerucha, the Albany County, Wyo., prosecutor in the case. In a statement to the court at the time of McKinney’s conviction, Dennis Shepard alluded to the permanent gag order, saying in reference to McKinney: ?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.?

?You can understand the motives of the Shepard family and sympathize with them, but I think it’s a scary precedent,? said Paul McMasters, the First Amendment ombudsman at the Freedom Forum. ?Even without being all that concerned about Mr. McKinney losing his right of free speech, it is the First Amendment right of the public to hear all sides of an emotional, wrenching case. … This [agreement] assumes on its face that the only value of free speech is to the criminal. The fact of the matter is there is great value of that speech to the public, to scholars, and to historians.?

Ironically, the Shepards are ?doing exactly what they say they don’t want, which is they’re drawing attention to Aaron McKinney and turning him into a symbol,? said William K. Dobbs, a New York lawyer and gay activist. The QueerWatch co-founder has been publicizing the gag order, which he calls ?a kind of totalitarianism.?

?Aaron McKinney and his attorneys are primary sources about a very notorious and contentious part of Wyoming history, yet they can never comment on it?? he said. ?It may be a little dramatic to talk about the gulag, but in America you can’t just throw someone into a hole and keep them silent forever.?

?This,? First Amendment Ombudsman McMasters said, ?is a gag order with legs.?


Mark Fitzgerald ( is editor at large for Editor & Publisher magazine.

(c) Copyright 1999, Editor & Publisher

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