Put the victim on trial?

Lawyers spar over autopsy photos, angels clash with the Rev. Fred Phelps and both sides prepare for a "sex panic" defense as jury selection begins in the Matthew Shepard trial.

Published October 11, 1999 10:35AM (EDT)

The opening morning of jury selection in the trial of Aaron McKinney, accused of the brutal beating and murder of Matthew Shepard a year ago, offered a preview of the tough issues that will surface once the trial begins.

It seems clear now that the prosecution will seek the death penalty, the defense will admit McKinney beat Shepard but argue his judgment was impaired by drugs and alcohol, the defense and prosecution will clash over the admissibility of the graphic autopsy photos and the trial will run longer than anticipated, probably five weeks.

Outside the hearing room Monday morning, gay rights protesters dressed like angels clashed with the Rev. Fred Phelps in a rematch of their showdown at Shepard killer Russell Henderson's trial last April. Once again the angels bested Phelps, with the protection of Laramie police.

The autopsy photos could turn out to be a crucial battle. Prosecutor Cal Rerucha asked potential jurors if they could stomach the grisly photos of Shepard, who was discovered beaten and nailed to a fence, barely alive, in a freezing field outside Laramie. "They are not pretty; murder is never pretty," Rerucha said. "But in order to be a good juror, you have to examine those photos."

At that point, three women raised their hands asking to be excused.

Defense attorney Dion Custis will likely challenge the use of those photos on the basis that they will inflame the jury. After sitting silent almost the entire morning session, he suggested that a combination of charts and drawings would suffice.

"We don't believe the pictures are even an issue here," he said. "We don't even think they're necessary."

The word gay only came up once during the morning session, when Rerucha asked panelists if they could put aside their feelings from the enormous pre-trial publicity. He said everyone would have to transcend their own identities, regardless of whether they were Christian or Muslim, straight or gay.

In the afternoon session, Custis said he would not try to prove McKinney is innocent, but would show that his judgment was clouded by drugs and alcohol. "We're not going to contest the cause of death or that he died as a result of a beating from Aaron McKinney along with Russell Henderson," Custis said. Though he does not plan to argue that McKinney was insane, he said "his mental state will certainly be a crucial question for you to answer."

There had already been indications that the defense might not challenge the basic facts of the case, but would attempt to avoid the death penalty with some sort of diminished mental capacity defense. They may argue that McKinney was intoxicated, temporarily insane or suffering from so-called "sex panic" as the result of an alleged pass by Shepard -- the defense strategy that proved effective in the Jenny Jones show murder case.

On Aug. 13, Rerucha filed a motion with the court stating: "Based upon communication from defense counsel dated August 10 asking the Albany County Detention Center to administer medication commonly prescribed for psychotic, schizophrenic, depressive and hyperactive disorders, the state can only speculate that Mr. McKinney's mental health will be an issue of mitigation in this case."

Rerucha's questions on Monday showed that he continues to anticipate that defense. Many of his questions to tentative jurors revolved around their comfort level with psychiatry and psychology. At one point he asked them whether they considered the field more of an art or a science.

Jeffrey Montgomery, spokesman for the National Coalition of Anti-Violence Programs, who consulted heavily on the Jones case and observed the morning session, said he fully expects the "sex panic" defense in this trial.

"The defense has got to do something to mitigate the act that might get the jury to excuse, even to some degree, what the guy [presumably will] admit doing," he said. "The only way to do that is to put the victim on trial. It's designed to appeal to something in a juror's mind that is already queasy about the gay thing. All the defense has to do is introduce reasonable doubt in one of 12 people. Appealing to that in the Jenny Jones case worked."

One key local issue has been the cost of the trial in this already debt-ridden county. Jury sequestration, which now seems a given, will increase the cost, and pushing for the death penalty will make it even more expensive. Many have urged Rerucha not to seek the death penalty, because juries have historically resisted capital punishment in Albany County, one of Wyoming's more liberal counties.

Another big question is whether McKinney will repeat co-defendant Russell Henderson's 11th-hour plea bargain. Lawyers had completed two full weeks of jury selection and seated a panel before Henderson's lawyer fired off a letter to Rerucha requesting a deal. Details were hammered out over the weekend, and opening arguments were replaced by a whirlwind mini-trial, sentencing hearing and final judgement, all within just over an hour on April 5.

Henderson was given two consecutive life sentences, with no possibility of parole. The only option for release under Wyoming law would be an unlikely pardon from the governor.

That afternoon, Henderson took the stand to lay out a full confession, which painted the entire attack as a $20 robbery that got out of hand. The word gay was never mentioned and hate was never addressed as a motive. No one in the courtroom contested that version of events.

On the courthouse lawn minutes later, Rerucha said those issues were "not appropriate here," but promised they would be addressed during the next trial. He stated plainly his belief that McKinney was the main perpetrator, and that he fully intended to pursue the death penalty.

Meanwhile, the Wyoming Tribune-Eagle announced in a Page 1 banner headline Sunday, "Homosexuality issue could backfire at trial." A pair of local lawyers consulting for the paper on the case agreed that raising the issue with this jury pool could be risky for either side.

But ignoring the issue would outrage the local and national gay population. "This is the trial to watch," said Cathy Renna, spokeswoman for the Gay & Lesbian Alliance Against Defamation (GLAAD). "Overwhelmingly, the perception is that Aaron McKinney was the main perpetrator. That image [of Shepard beaten and left for dead] is so indelibly imprinted in our minds, that for anybody to say that this was just a robbery is really going to be insulting."

Monday's protests were muted compared to those at the Henderson trial in April, largely because someone finally figured out how to silence Fred Phelps. He still showed up with a half-dozen "God Hates Fags" picketers from Kansas, but his group shifted tactics in response to the Angels of Peace, who took him by surprise last spring.

In April, Phelps and his group were surrounded by a dozen counter-demonstrators in flowing white angel costumes with 10-foot wingspans rising seven feet high. The angels turned their backs on Phelps, smiled and silently blocked him from the view of passersby at that time.

And in a secret plan worked out with police in advance, Phelps' group was confined to a demonstration pen, while the angels were allowed to surround him. Romaine Patterson, a close friend of Shepard's who organized the angels, said the agreement with police was that if they remained silent and did not hold hands, they wouldn't be considered demonstrators and could remain outside the fence to surround Phelps.

Patterson again worked closely this week with police, who agreed to the same ground rules despite reported legal threats from the Phelps camp. But five minutes before the protest was to begin Monday morning, Sgt. Mark Beck arrived at the angels' staging area to announce they would have to demonstrate inside a hastily arranged makeshift pen across the street.

The protesters seemed to take the wind out of Phelps' sails nonetheless. He clearly reined in his troops Monday. The much larger contingent in April was highly vocal and argumentative, while Monday they spoke only when asked questions by the scattered onlookers, and by reporters Phelps judged straight.

The police had clearly been on slippery legal ground in allowing the angels special demonstration privileges, which effectively reduced Phelps' ability to get his message out to onlookers. Police spokesman Randy Vickers confirmed the reversal was a command decision not made until Monday morning.

But the fact that the boys in blue in a state like Wyoming would fight so hard for a band of gay rights activists, and stick their legal necks out to assist them, is a measure of how far gays have progressed in their goal of public acceptance since the murder of Matthew Shepard.

By Dave Cullen

Dave Cullen is a Denver writer working on a memoir, "In a Boy's Dream."

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