Attorney maintains Shepard suspect is "100% not guilty"

NEW YORK BLADE

SUNDAY, MARCH 21, 1999

by Peter Freiberg, special from the New York Blade

To many people, it seems like a cut-and-dried case.

Matthew Shepard, a gay University of Wyoming student, was found brutally murdered last October, and all evidence appears to point to the guilt of the two young men arrested by police-Russell Henderson and Aaron McKinney, both 21.

But Wyatt Skaggs, lead attorney for Henderson, said his client is "100 percent not guilty."

And as jury selection begins next week in Henderson's trial, gay legal and anti-violence activists caution that nothing should be taken for granted in any case that involves an apparently anti-gay murder.

Many activists expect defense lawyers will use some variant of the so-called "homosexual panic" defense -a blame-the-victim tactic in which the assailant would allege that Shepard made a pass at one or both of the suspects.

"You know they're going to try and paint Matthew as having some kind of blame here," said Cathy Renna, community relations director for the Gay and Lesbian Alliance Against Defamation (GLAAD).

"I know that Judy Shepard [Matthew's mother, who will attend the trial] is braced for the defense bringing out issues that may or may not be true...and trying to paint Matthew as someone who either encouraged this to happen or asked for it," Renna said.

Others worry that a prosecutor inexperienced in handling anti-gay crimes could have difficulty handling such a defense strategy.

"These kinds of cases bring out a very aggressive effort on the part of the defense team, especially around issues like 'homosexual panic,'" says Jeffrey Montgomery, president of the Triangle Foundation, a Michigan gay organization and a member of the National Coalition of Anti-Violence Programs, a gay group.

"In many cases," says Montgomery, "it's the first time the prosecutor has confronted that kind of argument. It can sound like a compelling argument, especially to a jury that brings a level of...uneasiness in dealing with a gay case."

Matt Coles, director of the Lesbian and Gay Rights Project of the American Civil Liberties Union (ACLU), said one obvious danger to the prosecution in Wyoming is that the defense will try to get jurors who "will not empathize with a gay man generally." The defense will instead, he said, try to pick jurors who can relate to Shepard's alleged attackers as "people who have not had easy lives."

"This is a savage killing," Coles said, "and the savageness of the killing can be used to destroy empathy for the defendants, but...I don't think you can necessarily assume that's going to happen."

"If I were doing it," said Coles, "I would...make the jury understand in excruciating detail what the last 18 hours of his life were like. I wouldn't just pass around pictures, I wouldn't just use descriptive language, I would ram it home."

As for the so-called "panic defense," Coles says, the jury can be made to see how "ultimately silly" it is.

"If every woman in America reacted to every unwanted suggestion of sex the way the 'panic defense' suggests it is proper to react," Coles said, "there wouldn't be many heterosexual men left.... You can make that point to a jury, which will understand it."

Hanging over the upcoming trials is the bitter memory of the 1979 trial of Dan White, the killer of openly gay San Francisco Supervisor Harvey Milk and Mayor George Moscone. That jury accepted a defense argument that White was mentally incapacitated from eating junk food (now called the "Twinkie defense") and found him guilty of only "voluntary manslaughter." He was paroled after just five years, then killed himself 22 months later.

Two decades later, the Wyoming trials-one for Henderson this month, another for McKinney later this year-are likely to be the most publicized cases ever involving an anti-gay murder.

Dean Jessup, clerk to District Judge Jeffrey Donnell, said this week that 25 seats have already been reserved by media for the Henderson trial, with at least 10 more media outlets expected to take unreserved seats. (Only three seats were made available for a "press pool" to cover some aspects of the jury selection. Once the trial begins -scheduled for April 6-Blade reporter Lou Chibbaro will be in Laramie to cover the Henderson trial.)

Some activists say the trials have the potential for further educating the general public on the physical dangers that confront many gay men and lesbians on an everyday basis.

"The question of how much education will continue with respect to the heterosexual world," says Sue Anderson, executive director of Equality Colorado, a gay group, "really depends on what the media [coverage] looks like coming out of that trial."

The crucifixion-like murder of Shepard transfixed the nation last October, bringing denunciations from President Bill Clinton and many other officials and generating numerous vigils, memorials, and demonstrations.

Albany County prosecutor Cal Rerucha will not discuss the case now. But last fall, law enforcement officials said Shepard was lured from a Laramie bar Oct. 7 by Henderson and McKinney, who pretended to be gay. Once the three climbed inside a pickup truck, Henderson and McKinney allegedly pistol-whipped the 105-pound student and drove him to a remote area just outside Laramie. There, police said, they tied him spread-eagled to a log fence, beat him about the groin, bludgeoned his skull, and robbed him of $20. The pair then left Shepard tied to the fence, where he was found unconscious 18 hours later by a bicyclist who thought he was a scarecrow. Shepard remained in a coma and died Oct. 12 in a Colorado hospital.

Henderson and McKinney were charged with first-degree murder, kidnapping, and aggravated robbery; both pleaded innocent. Following jury selection, opening arguments in Henderson's trial are scheduled for April 6 (McKinney's trial is slated to begin Aug. 9).

Prosecutor Rerucha is seeking the death penalty for both, a development that has sparked some debate within the gay community over the morality of capital punishment.

Henderson's attorney Skaggs declined to discuss defense strategy with the Blade but was quoted by the Associated Press last December as saying Rerucha's decision to seek the death penalty was "heavy handed...and somewhat politically motivated."

Many gays will watch the trial closely to see the extent to which the prosecution focuses on the anti-gay aspect of the Shepard killing. While Wyoming is not one of the states with hate crime laws that allow increased penalties for bias-motivated crimes, the prosecutor has already asked for the stiffest sentence possible.

Michael Hogan, the openly gay senior deputy prosecuting attorney for King County, Washington, which includes Seattle, says one element that often indicates a hate murder is the "posing" of the body.

"You riddle the body with bullets, you disparage the body in a way that sends a message back to a targeted group," Hogan says. "I see that element in the way they left Shepard hanging on a fence." Beating Shepard viciously and tying him to a fence, Hogan says, were "completely unnecessary to effectuate a robbery." (Gay activists have often noted the element of "overkill" involved in anti-gay

murders.)

Still, Hogan, who prosecutes hate crimes, warns that Rerucha may not be able to show with certainty that Shepard was murdered because he was gay.

Hogan says jury selection is always crucial, especially when there is a victim-in this case, a gay man-who may be viewed unfavorably by the jury pool.

Most people, he says, are unwilling to acknowledge their prejudices, so eliminating everyone with anti-gay bias will be extremely difficult. Prosecutors, Hogan says, "give questionnaires, ask questions, and just hope and pray that people will put aside their biases and just decide on the facts."