There is a price to pay for muzzling a murderer

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

11.22.99

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"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.

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