Controversy swirls following ABC news show

Matthew Shepard’s Murderer Never Silenced

A gag order that was supposedly placed on Aaron McKinney, one of two men who murdered Matthew Shepard in 1998, and was the subject of criticism from some civil libertarians and journalists, apparently never existed.

McKinney, who was sentenced to two consecutive life sentences in 1999 for the Shepard killing, agreed to “refrain from talking to any news media organizations regarding State v. McKinney” in a November 4, 1999 plea agreement that was authored by Jason M. Tangeman and Dion J. Custis, McKinney’s defense attorneys, and sent to Cal Rerucha, the Wyoming prosecutor who handled the McKinney trial and the trial of Russell Henderson, McKinney’s accomplice.

In that 1999 letter, Tangemen, Custis and the entire defense team also agreed to never discuss the case with the press. McKinney, who also agreed to not appeal his sentence, avoided the possibility of getting the death penalty by entering into the agreement.

On November 4, 1999, McKinney was questioned by Barton R. Voigt, the trial judge, and asked if he understood the provisions of the agreement including the ban on media interviews. He responded with a “yes,” according to the hearing transcript.

A review of the court transcript, corroborated by a report in the Wyoming Tribune-Eagle, indicates that that language is not in Voigt’s final order in the case.

“While a transcript of that conversation held in chambers on Nov. 4, 1999, states McKinney agreed with the parameters of the sentence, neither of those caveats appears in the judgment, sentence and order of incarceration signed eight days later,” the newspaper reported on November 30, 2004.

Dennis and Judy Shepard, Matthew’s parents, sought the gag order to spare themselves from having to see McKinney appear in the press in later years.

“Mr. McKinney, your agreement to life without parole has taken yourself out of the spotlight and out of the public eye,” Dennis Shepard said at the 1999 McKinney sentencing hearing. “It means…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.”

In 1999, Wyoming’s two major newspapers editorialized against the gag order as did Editor and Publisher, the newspaper industry trade publication, in an editorial titled “Free Speech Gets the Death Penalty.”

The Wyoming chapter of the American Civil Liberties Union and the Freedom Forum, a national journalism group, also opposed the order.

In the queer community, William K. Dobbs, an attorney and longtime gay activist, staunchly opposed the death penalty in the McKinney case, as well as the gag order.

“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 told Editor and Publisher in 1999. “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.”

The order controversy reemerged in advance of McKinney’s interview on “20/20,” the ABC news magazine, that aired on November 26, with Editor and Publisher entering the fray opposing the gag order. The magazine corrected its position after the recent Wyoming Tribune-Eagle story ran.

Judy Shepard told Gay City News that in her view the deal was still in force.

“It actually is part of the final sentence, but it is in a closed sentencing document, it wasn’t part of the published document,” she said on December 1.

“It doesn’t make it any less valid. Of course there would be issues in legally challenging it, I mean, what we going to do, send [McKinney] to death row now? What we are trying to do is to preclude anyone else from interviewing him.”

Dobbs said that whether the gag order was in Voigt’s order or in the plea agreement, the intent was to gag McKinney.

“The agreement with the gag order in it was reprehensible,” he told Gay City News.

Dobbs added that the Shepards had far too much influence on the prosecution.

“The prosecution did not make a move without Judy and Dennis Shepard’s approval,” he said. “That is a serious problem in this case.”

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