Letters to the Editor	Letters Archive

Victim's Rights and Wrongs

Your two December pieces on the Shepard trial [Wyoming: Inequality State, and Rainbow Noose] are riddled with errors and stretches of logic.

It is astounding for you to claim the trial was an exercise in cheerleading for the death penalty. The prosecutor, the detectives, and the Shepards each said that this trial was necessary to get the full story out to the public.

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On what basis do you claim that McKinney was willing to plead to a life sentence? There is no such evidence.

You continue: "After it became clear that the jury was not going to kill McKinney, Shepard's father relented: 'I am going to grant you life,' he said in a statement to the court, a frightening confirmation that he, not the state, was deciding the accused's fate." You have clearly never met the prosecutor, Cal Rerucha: the man is a driven, iron-willed bull. Rerucha faced reporters on the courthouse lawn and said that the final decision was his. He pointed out that he was required by law to confer with the family and consider their wishes. There is nothing unusual, much less "frightening" about a prosecutor consenting to the family's wishes not to pursue the death penalty.

Now we get into the outright factual errors: "Henderson accepted a plea bargain last April that imposed two consecutive life sentences. The reason such a deal wasn't offered McKinney from the start was the desire of Shepard's family to have McKinney executed." Such a deal wasn't offered to McKinney for the same reason it wasn't offered to Henderson: the prosecution was never making any offers. Both agreements were initiated by the defense teams.

You continue: "Throughout the trial, Rerucha's legal strategy was to muzzle McKinney and his public defenders." But the objection to the potential "gay panic" defense was raised by Judge Voigt, not Rerucha. Neither Rerucha nor the Shepards were connected with the decision to limit the defense options.

Your argument that the Shepards consented to a life sentence instead of execution because the verdict suggested that the jury wouldn't imposed the death penalty is based on the state of mind of the Shepards. But Judy Shepard was insistent and sincere that they thought they could still get the death penalty at that point. This idea of the Shepards dictating the terms surfaces again and again in your pieces, but the agreement came directly from the defense, with all the clauses you site already intact. None of that was dictated by the Shepards, but rather requested of them. The Shepards muzzled McKinney only in the sense that once he strapped on the muzzle, they agreed to his terms that it remain there.

Dave Cullen
davecullen@earthlink.net

The Guide replies: Thank you for your comments regarding our coverage of and editorializing about the McKinney/Shepard trial.

Was McKinney, like Henderson, willing to plead to life? Perhaps we'll never know for sure, but it seems that the Shepards and Rerucha were saving their big push for blood for his trial; if a plea was possible, then the only substantial additional outcome of his trial was that he be killed. For any individual or group to claim neutrality on the death penalty, and then to lobby for a trial the purpose of which was to decide whether to kill the accused is disingenuous. If "getting to the truth" was indeed the goal of the police, prosecutors, and Shepard family, it is inexplicable that they insisted that McKinney and his attorneys be forever gagged.

Mr. Shepard told the court, "It was our [the Shepard family's] 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," an assertion that suggests that the goal (before the jury refused to convict on premeditated murder) was to focus the attempt for blood on McKinney's trial. Given that Henderson pled; that McKinney was, by all accounts, the main protagonist; that he himself had confessed; and that Henderson was expected to testify against him, it seems reasonable to assert that this trial wasn't about obtaining a life conviction, but instead the death of the accused. The Shepards found it politic to recast themselves as humanitarians only after the jury refused to convict on premeditated murder thus signaling serious problems for those seeking execution.

It is, of course, standard rhetorical boilerplate for prosecutors and other politicians to assert their responsibility for decisions made and/or strongly influenced by others, so Rerucha's claims are not persuasive.

"The people" are the prosecutors legitimate clients. Showcasing "victims' rights" is bad policy. While our concern is fundamentally for the larger social implications of allowing victims to call the procedural shots, many families of murder victims who, fresh in their grief, press for killing the accused-- perhaps succumbing to the notion that such vengefulness proves their love-- later regret their actions, don't find the "closure" they expected, and feel used by the process.

You are right to note that we conflated the concerted campaign by homo trial watchers (who were busy faxing and emailing as the trial started, urging that Judge Voigt be lobbied to reject any "gay panic" defense) with the strategy of prosecutor Rerucha. How Judge Voigt was led to his decision to bar such a defense maneuver remains a mystery. Rerucha's and the Shepards' role in Voigt's decision is speculative and would have been better labeled as such.

But the Rerucha/Shepard team obviously negotiated an agreement with McKinney, et al, while McKinney was being threatened with death. A man who "requests" that his potential murderers take all his belongings instead of killing him cannot be said to have "given" his things away. McKinney's plea bargain was extorted under threat of death. To suggest that objections to its contents can only be directed to the defendant (since he "offered" its terms) is disingenuous.

We don't blame the Shepards, just like we wouldn't "blame" an aggrieved family whose outrage fueled a desire to track and kill their baby's murderer; we do argue, though, that due process dictates removing reactionary vigilantism, however understandable, from judicial proceedings.

Public trials are a cornerstone of due process; thus, it is repulsive that a gag order engineered behind the scenes wherein perpetual silence extracted under threat of death replaces an open trial. McKinney's trial was used by those seeking blood, by those seeking advancement of a political agenda, and by those catering to victims rather than "the people." Suspending the Bill of Rights for any of those purposes is a short-sighted and dangerous tactic.