The Murder of Matthew Shepard and Our Right to Know

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By: Mark Fitzgerald

ABC’s “20/20” news show is stirring anger among some parts of the gay community with its plans to broadcast next week an investigation that apparently concludes the horrific 1998 murder of 22-year-old Matthew Shepard was not a hate crime but something more complicated involving methamphetamine and robbery among possible acquaintances.

Shepard — who was beaten, pistol-whipped, and left to die against a range fence on the outskirts of Laramie, Wyoming — has become an icon in the gay community and his murder a rallying cry for proponents of hate-crime legislation. Though they haven’t seen the “20/20” piece, which airs Nov. 26, some gay activists fear it’s intended to “de-gay” Shepard’s murder, as Michael Adams of the gay-rights organization Lambda Legal put it to the Web site In a press release, GLAAD, the Gay and Lesbian Alliance Against Discrimination, said ABC’s “sensationalistic publicity strategy raises significant concerns for us.”

But journalists — and all citizens concerned about the right to know — should welcome the attention this show will bring, not so much for what light it might shed on the circumstances of Shepard’s killing but because we’ll learn about an alarming and clearly unconstitutional restraint on speech and the press that was part of the sentencing agreement for one of the murderers.

Indeed, the most intriguing thing about the “20/20” report is that it will include interviews with Shepard’s killers, Russell Henderson and Aaron McKinney, who are serving double life sentences.

It’s intriguing, because under his plea agreement, which was followed by an order signed by the trial judge, Aaron McKinney agreed never to speak to a reporter about his case for the rest of his life.

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

This lifelong gag also applies to his two public defenders, and the entire public defenders’ office — all of whom are funded by the taxpayers of Wyoming. “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,” said the agreement signed by public defenders Jason M. Tangeman and Dion J. Custis.

More astonishing than this lifelong gag order was the fact that it attracted almost no notice outside of Wyoming.

In their natural revulsion at what McKinney and his thuggish buddy Henderson had done to Shepard, the press and the public ignored the implications of this unprecedented gag order — and the unusual role that the victim’s parents, Dennis and Judy Shepard, had in determining McKinney’s fate.

An editorial in The Star-Tribune in Casper at the time noted what was at stake for citizens. “In other words, the public will not be allowed to know more about McKinney’s version of events than it learned during the trial,” it wrote at the time. “This sets an extremely dangerous precedent.”

Paul K. McMasters, the First Amendment ombudsman for The Freedom Forum, tried then to call national attention to the issue. “Even without being all that concerned about Mr. McKinney losing his right of free speech,” he said at the time, “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.”

In a November 1999 editorial titled “Free speech gets the death penalty,” E&P said the plea agreement “reads like the spawn of George Orwell’s ‘1984’ and Joseph Heller’s ‘Catch-22.'”

Ironically, one of the figures most active in trying to get the press to pay attention to the gag order, which he called “a kind of totalitarianism,” was the longtime gay-rights activist William K. Dobbs. “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,” Dobbs told E&P at the time.

Press reports back then said the gag order was the idea of McKinney’s lawyers, who couldn’t contradict that assertion under the agreement’s terms. The Shepards — who had been given a kind of veto power over the plea agreements by prosecutor Cal Rerucha — eagerly embraced the ban.

In an extraordinary statement to the court, Dennis Shepard made it clear he wanted McKinney to disappear from sight. “Your agreement to life without parole has taken yourself out of the spotlight and out of the public eye,” he told 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.”

And for five years, that’s exactly how it went, even as the Shepard’s story inspired the frequently performed play “The Laramie Project,” and his mother Judy went on to create the Matthew Shepard Foundation and campaign for hate-crime laws.

Now comes “20/20” with news that McKinney and his attorneys are talking. One of McKinney’s public defenders now says that he believes the formal “judgment and sentence” does not include the gag order. A Nov. 13 story by Casper Star Tribune capitol bureau reporter Bill Luckett quotes attorney Dion Custis as saying any interview with “20/20” would not nullify the sentence, despite the agreement in the letter between the defense and prosecution.

That’s good news, if true. But a Dec. 9, 1999 Wyoming Tribune-Eagle article by Becky Orr reported that Judge Barton R. Voigt, now a Wyoming Supreme Court justice, had signed and filed the order.

Whether this gag is going away because it was never imposed in the first place, or because “20/20” is taking it head on, the important thing is that we be rid of this shameful example of prior restraint and victim rights gone amok.

“For all our sympathy,” E&P editorialized back in 1999, “we as a society cannot allow the Shepards, or any family of any victim, to determine what we can and cannot ever know about a crime or a prisoner. Our criminal justice system and our prisons need to be more open to public scrutiny — not shrouded further in the vain hope of assuaging the trauma of victim survivors.”

The press and civil libertarians fought hard from the beginning to gain access to the hearings deciding the fate of foreign prisoners captured in Afghanistan and held incommunicado at the Guantanamo Bay naval base in Cuba. They should never have tolerated for so long a similar situation of enforced silence in a prison in Wyoming.

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