From: MPetrelis@aol.com
Date: Tue, 23 Nov 1999 02:29:28 EST
Subject: Two editorials deploring muzzling McKinney


Editor & Publisher
"The Oldest Publishers and Advertisers Newspaper 
in America"
www.mediainfo.com

November 20, 1999

EDITORIAL
Free Speech Gets the Death Penalty

By agreeing to a plea bargain, Aaron McKinney 
escaped an almost certain death sentence for his 
part in the horrific murder of Matthew Shepard.

McKinney and another man took Shepard, a gay 
21-year-old student at the University of Wyoming, 
to the outskirts of Laramie, tied him to a fence, 
beat and pistol-whipped him and left him to die 
alone on the plains. The killing made headlines 
around the world not only for its brutality, but 
because it was apparently motivated by nothing 
more than hatred for homosexuals.

McKinney's plea saved his own neck -- but it is 
no bargain for the rest of us. The agreement that 
sentences him to two life sentences also sets a 
condition unprecedented in the history of 
American justice: For the rest of his life, Aaron 
McKinney is banned from ever speaking to 
reporters about his murder case. The plea 
agreement also imposes this lifelong gag order on 
McKinney's entire defense team -- including the 
public defender the people of Wyoming paid to 
represent McKinney.

This alarming and patently unconstitutional 
government restraint on free speech is being 
imposed not just on Aaron McKinney and his 
lawyers -- but on the entire American public as 
well. The public will never be able to learn 
whatever perspectives McKinney and his defense 
team could bring to this singular event that 
continues to shape the debates over the death 
penalty, hate crime laws and the civil rights of 
homosexuals. "This [agreement] assumes on its 
face that the only value of free speech is to the 
criminal," notes Paul McMasters, the First 
Amendment ombudsman at The Freedom Forum. "The 
fact of the matter is, there is great value of 
that speech to the public, to scholars and to 
historians."

We should also say a word about how this lifelong 
gag order came to be.  Albany County (Wyo.) 
Prosecutor Cal Rerucha claimed to Laramie Daily 
Boomerang reporter Nate Green that McKinney's 
lawyers put the gag order in the plea bargain, 
perhaps because they "realized their own misdeeds 
in the trial." Of course, under the terms of this 
agreement -- which reads like the spawn of George 
Orwell's "1984" and Joseph Heller's "Catch-22" -- 
none of the defense lawyers can contradict that. 

But in an extraordinary court statement, Dennis 
Shepard, Matthew's father, made it clear the 
family wanted Aaron McKinney to become, as they 
said in Stalin's time, a non-person. "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."

Who among us, if it were our son tortured and 
killed on a lonely range, would not wish this 
fate, or a far worse one, on the murderer? Yet 
for all our sympathy, we as a society cannot 
allow the Shepards, or any future 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. Trial Judge Barton K. Voight 
should immediately strike these repugnant gag 
orders from McKinney's sentence.
-------------------------------------------------

The Freedom Forum Online
November 22, 1999
http://www.freedomforum.org/first/1999/11/22om  
budsman.asp

Commentary

There is a price to pay for muzzling a murderer

By Paul McMasters
Freedom Forum First Amendment Ombudsman

"Shut up or die" isn't the kind of choice one 
expects to have to make in a
democratic society. But that was the choice 
recently presented to Aaron
McKinney while on trial in Laramie, Wyo., for 
murdering Matthew Shepard.

McKinney took the shut-up option, of course.

To avoid facing the death penalty for his part in 
the pistol-whipping death of
Shepard, McKinney signed on to a sentencing 
agreement that muzzles him,
his lawyers, and the media for the rest of his 
life. It's difficult to work up a lot of
sympathy for the homophobic defendant in this 
case, but the sentencing
agreement does raise significant issues for a 
society that values both freedom
and justice.

The sentencing agreement, drawn up in 
consultation with Shepard's parents,
stated that:

     McKinney could not appeal his sentence.

     He could not talk to the news media about 
the case.

     His attorneys, the public defender, the 
mitigation specialist and other
     members of the defense team could not talk 
to the news media.

     Any proceeds arising out of the case for 
McKinney must be given to the
     Matthew Shepard Foundation.

     The defense would not present any evidence 
reflecting on the character
     of the victim and would not oppose 
introduction of Mr. 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.

Dennis and Judy Shepard had endured for many 
months not just the brutal loss
of their son but slights and innuendoes about him 
from one of his murderers. It
seems clear that they wanted to put all of that 
to an end. They wanted to make
sure that McKinney did not further sully the 
memory of their son. They wanted
to make sure that he did not use the news media 
to turn his infamy into
celebrity.

Even so, the sentencing agreement has raised a 
lot of eyebrows and a good bit
of controversy. Editorialists and civil rights 
activists have complained about the
extent of the Shepards' involvement in the 
conduct of the trial and the
formulation of the agreement, as well as the 
silencing of the defendant.

There are real concerns in such an arrangement.

First, it flouts the public's First Amendment 
right to hear all voices in a
significant public-policy dialogue about hate 
crimes and other
crime-and-punishment issues.

The Shepards went straight from the trial in 
Laramie to Washington, D.C., to
talk to members of Congress about hate-crime 
legislation, then to New York to
appear on a television network. What they have to 
say is important, but their
views would have greater resonance and validity 
if Mr. McKinney were to be
able to talk also.

McKinney may well have important things to say 
about his involvement in and
reasons for this crime, outside the constraints 
of a murder trial. He may well
contribute to a better understanding of the 
reasons for hate crimes and, thus,
on how to prevent them.

Second, such an agreement raises serious 
questions about how the courts
might enforce it. 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?

Third, there is the larger picture, and that is 
that the American public
systematically and increasingly is being excluded 
from the criminal justice
public-policy debate. Lawmakers are fine-tuning 
so-called "Son of Sam" laws,
ruled unconstitutional in 1991, to prevent 
prisoners from profiting from their
crimes by writing or talking about them. 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 ways.

A democratic society must measure its commitment 
to justice by encouraging
the public to monitor the judicial process and 
judge its results. A democratic
society must measure its commitment to freedom by 
protecting the speech of
even the least deserving of that liberty.

By those measures, we are falling short.

There is a reason we keep the victims of crime at 
arm's length in the
dispensation of justice. To do otherwise is to 
invite society to sink to the levels
of the monsters among us.

There is a reason we protect the speech of even 
the lowliest and most odious
among us. To do otherwise is to say that we are 
incapable of learning from our
mistakes or our murderers.

There is a reason we have invested so much in 
making sure that even a
murderer doesn't face the ultimatum of "shut up 
or die." To do otherwise is to
muffle the strong voice of both freedom and 
justice.

Paul McMasters may be contacted at 
pmcmasters@freedomforum.org.