Killer: Shepard didn't make advances

A just-unsealed confession demolishes the "gay panic" defense. Too bad the media wasn't around to hear it.


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Dave Cullen
November 6, 1999 9:00PM (UTC)

Speculation has persisted for the past year that Matthew Shepard,
rather than being the victim of gay-bashing, might really have been
nothing more than a hapless robbery victim who was exploited
by gay activists
to reap unwarranted sympathy and advance their
own agenda to enact hate-crimes legislation.

The revisionism intensified during the last two weeks as the media
reported the defense's portrayal of Shepard's killers as suffering
from "gay panic" and Shepard himself as a reckless sexual aggressor
who probably provoked his own death, even if he didn't deserve it.

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Statements made by one of the convicted killers, which were revealed
for the first time Thursday, reveal these accounts to be false.
But the national media wasn't around to report it.

In October 1998, Shepard was beaten with a .357 Magnum and tied to a
fence
in the Wyoming countryside. Five days later, the
21-year-old died from his injuries. Earlier this week, a jury
found Aaron McKinney guilty of first-degree felony murder. Shepard's
parents agreed to an unexpected deal
with defense attorneys to a sentencing agreement, giving McKinney two life
sentences, rather than exposing him to the death penalty. In April,
McKinney's friend and fellow roofer Russell Henderson pleaded guilty to felony murder and was sentenced to two life sentences without
the possibility of parole.

With the completion of the final murder trial, and the lifting of
Judge Barton Voigt's gag order, key information related to those
questions was revealed Thursday. According to detectives who
interviewed both of the convicted murderers, there is no evidence
that Shepard made any sexual advances to the pair -- and the detectives dismissed
the idea that the murder was the mere result of a robbery gone bad.

"Far from that!" scoffed Sgt. Rob DeBree, the chief investigator in
the case. "They knew damn well he was gay ... It started out as a
robbery and burglary, and I sincerely believe the other activity was
because he was gay."

DeBree was available to reveal much of the sealed information in the
case, but said only a handful of reporters -- none of them from the
major national media -- had asked. He and police Detective Commander
Dave O'Malley spoke extensively with Salon News Thursday afternoon
and again Friday morning inside the Albany County courthouse.

McKinney and his defense team were silent on the new information,
because his sentencing agreement forbids them from ever discussing
the case, or profiting from it.

The most significant revelations emerged from the secret confession
of Henderson, obtained just three days after his plea
bargain. Henderson's confession is crucial, since he is the only
person besides McKinney who knows what really happened at the
Fireside Lounge and that infamous fence last October. Henderson spoke
to DeBree and other detectives for about an hour and 45
minutes after his sentence was finalized and he had nothing else to
lose.

Henderson debunked the portrayal of Shepard that has gained currency
the past few weeks. Had he testified in court as scheduled at McKinney's trial,
he would have blown apart the watered-down "gay panic"
defense
pursued to the end by McKinney's legal team, despite Voigt's rejection of some of its key components.

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During his closing argument, public defender Dion Custis hammered
home the gay panic theme repeatedly, summarizing the key elements of
his defense in two sentences: "It started because Matthew Shepard
grabbed [McKinney's] balls. It continued because Aaron McKinney
was a chronic meth user."

The grope never happened, DeBree insists. Henderson told
investigators that as far as he knows, the grope was entirely
fictional. In order for McKinney's story about the pass to hold up,
DeBree said, his response to the homosexual grope would have to have
been so silent and serene that Henderson was oblivious to the entire
incident. The three young men were crammed into the front seat of the
truck, with Henderson driving and Shepard squeezed into the middle.
What's more, the defense team's opening statement at trial repeatedly
emphasized that it was McKinney's humiliation in front of his friend
that triggered the attack. Henderson said he never saw it.

But one aspect of the defense's portrayal of McKinney did hold up
under investigation. Independent of Henderson's testimony, the
detectives concluded that McKinney's stunning allegations that a
neighborhood bully forced the 7-year-old McKinney to perform oral
sex on him were completely true. O'Malley lived next door to McKinney
for several years, and he said his son was prepared to testify to
witnessing those events during the penalty phase of the trial. Both
detectives said the bully had left Laramie years ago.

Despite the defense team's repeated allegation that Shepard groped
the young man, DeBree said McKinney recanted it in his own taped
confession. The tape was played in court, but much of it was
inaudible to the gallery where the press was seated. Transcripts were
provided to the jury, but remained under seal late Friday afternoon.
DeBree said the tape shows that initially, McKinney claims Shepard
reached over and grabbed his crotch or his leg. "Then later, he says
'as if he was going to.' To me that says clearly, it never happened."

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Henderson was scheduled as the star witness for the prosecution, as a
key condition of his plea bargain. But he created a flurry of
courtroom drama by abruptly breaking that bargain Oct. 28,
refusing to testify just minutes before taking the stand. He'd
already been transported 100 miles from the state penitentiary in
Rawlins, and actually sat down on the stand during a recess. He was
inexplicably pulled from the witness list after a lengthy closed-door
hearing. Only later that day was the source of the drama revealed.
Prosecutor Cal Rerucha said he had taken Henderson at his word, but
that with two life sentences hanging over the convict's head and no
possibility of parole, he had no leverage to force compliance.

According to the detectives, Henderson's testimony also would have
resolved the most contested issue of the case: that he and McKinney
initially approached Shepard and posed as gays to lure him out of
the Fireside Lounge to rob him.

Henderson provided a detailed account
of that plan. The killers identified Shepard as a lonely homosexual,
an easy mark, and retreated to the bathroom to hatch their plot.
Henderson made the first advance by whispering a come-on in Shepard's
ear, and "McKinney tried to feminize his voice to continue the lure,"
DeBree said.

Henderson's confession confirmed one key aspect of the prosecution's
claim of premeditation, but left another one unresolved. DeBree said
Henderson told them the beating first began in the truck, when
McKinney demanded the wallet, eight to 10 minutes before the main
beating at the fence. The defense consistently maintained that the
attack didn't begin until they reached the fence, and the entire
beating amounted to one explosive fit of rage that lasted as little
as two minutes.

However, Henderson said he did not observe another crucial exchange
between McKinney and Shepard. Throughout the trial, prosecutor
Rerucha insisted that McKinney ended the attack with a cold-blooded
desire to finish off the witness. Rerucha contended McKinney feared
Shepard would recognize him and asked if he could read the license
plate on the truck; when Shepard complied successfully, McKinney
delivered the final blows, crushing his skull.

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The tape of McKinney's confession seemed to confirm that, but the defense tried to plant
doubt in jurors' minds. Henderson said he was already in the truck at
the time and never witnessed that event.

Henderson's statement that the beating began in the truck lends
support to the idea that the crime was premeditated, but Henderson
continued to deny that they planned to beat Shepard from the start.

"Henderson wouldn't come forward with the full aspect of that,"
DeBree said. "Of course the typical homicide suspect would not give
you that." He believes Henderson was too ashamed to reveal the most
heinous elements of the crime -- both defendants expressed shame for
their actions at their sentencings, after their fates were sealed --
and he was also treading the line between complying with his plea
agreement and saving his buddy's life.

"He did as much as he could to cover for McKinney, as well as covering his own rear end," DeBree said. "He had a reputation of being extremely loyal to a friend and
not a 'snitch' on him."

Prosecutor Rerucha was disgusted by Henderson's double-cross, but
O'Malley and DeBree sympathized with the plight of a convict who
would be labeled a jailhouse rat. "It was self-preservation,"
O'Malley said. DeBree nodded. "It was survival. And I'm not sure I
would blame him."

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They also squelched rumors which had run rampant
last week that Henderson had threatened to recant his confession and
testify for the defense. "He said, 'I'm not testifying for either
one,'" DeBree said.

Both detectives expressed relief that Laramie would be spared the
penalty phase, which could have ripped this small town apart. "It
certainly could have been ugly for a lot of people," O'Malley said.
Much of the town was connected to one or both of the parties. For
instance, O'Malley had known McKinney, both of his parents and
several cousins, and also graduated from college with Shepard's uncle.

Outraged by the revisionist view of Shepard as a reckless adventurer
who was complicitous in his own death, DeBree suggested reporters
consider the indignity suffered by the victim's family the past two
weeks.

He said there was "absolutely no proof" to support allegations of
Shepard's advance on McKinney: "It's an allegation of a suspect
that's looking down the barrel of a death sentence." He said he
believed the other two witnesses presented by the defense to show
Shepard came on to straight strangers also jumped to ridiculous
conclusions. DeBree performed a rigorous investigation into Shepard's
sexual history and found no evidence to support the characterization.
"There was nothing in the history, never any attempt like that."

DeBree is a big, burly Wyoming sheriff's detective, a man who would
be exceedingly out of place in the Castro or the East Village -- the
least likely sort of person to be a shill for the gay community.
"That is one thousand percent torture, what occurred to that boy," he
said.


Dave Cullen

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

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