Before the Aaron McKinney trial in Wyoming gets boxed away in the national memory, we should linger on some very disturbing features of the plea agreement, starting with the successful demand by Matthew Shepard's parents, Dennis and Judy, that neither McKinney nor any members of his defense team ever speak to the press about the trial. Indeed, the state of Wyoming effectively ceded to Shepard's parents the disposition of the penalty phase of the trial. Amid Dennis Shepard's remarks to the court (where he emphasized his belief in the death penalty) came these words addressed to McKinney. They are worth quoting at some length.

"Your agreement to life without parole has taken yourself out of the spotlight and out of the public eye. It means no drawn-out appeals process, chance of walking away free due to a technicality, no chance of a lighter sentence due to a 'merciful' jury. 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. It works for me ...

"Mr. McKinney, I am not doing this because of your family. I am definitely not doing it because of the crass and unwarranted pressures put on by the religious community. If anything, that hardens my resolve to see you die. Mr. McKinney, I'm going to grant you life, as hard as it is for me to do so, because of Matthew. Every time you celebrate Christmas, a birthday or the Fourth of July, remember that Matthew isn't. Every time you wake up in that prison cell, remember that you had the opportunity and the ability to stop your actions that night. Every time that you see your cell mate, remember that you had a choice, and now, you are living that choice. You robbed me of something very precious, and I will never forgive you for that. Mr. McKinney, I give you life in the memory of one who no longer lives. May you have a long life, and may you thank Matthew every day for it."

One can, of course, understand Dennis Shepard's anguish and fury. But all the same, the boast that a victim's parent, not a jury, can "grant" life is not one that should be heard in any courtroom. The Laramie Boomerang ran a good story by Nate Green on Nov. 10, quoting Billy Ruth Edwards, a Cheyenne attorney and interim director of the ACLU, as saying that "If, as Dennis Shepard asserted, it was their decision to do everything, to have the trial, to accept the guilty plea of (co-defendant Russell) Henderson ... to work it out this way, then, we have two people dictating what the state of Wyoming does on behalf of its citizens." The newspaper also cited Jim Angell, executive director of the Wyoming Press Association, as saying that "I don't think any court in the land would stand by an agreement that limits the First Amendment right of an incarcerated, convicted murderer. It's true that McKinney is a less than desirable human being, but he still has the right to speak out to whomever he wants."

In fact, it's quite possible that the Wyoming jury, if it had been properly allowed to deliberate the penalty, would have handed McKinney one life term, not the consecutive terms decreed by McKinney's parents in consort with prosecutor Cal Rerucha.

Bill Dobbs, a Gay Nation co-founder and civil-rights attorney in New York who has issued some unsparing criticisms about the pro-death penalty posture of many gay groups on the Shepard case, says that the agreement "squelches an entire side of a notorious case. How can we ever learn the truth if we silence somebody? I'm very concerned this could become a pattern." Dobbs adds that the Shepards shouldn't have played such a strong part in the prosecution's decisions, that the jury should have been sustained in its right to sentence McKinney, and that Shepard's father shouldn't have been able to read a victim's impact statement, especially after the plea bargain had been set.

So, what would happen if McKinney did talk to a journalist? Would it mean harsher treatment in prison? Perhaps there is room here for some courtroom test of the constitutionality of the gag order.

It has been bizarre -- amid the whole sinister push for "hate-crime" laws, to hear liberals arguing simultaneously -- apropos the Shepard case that a) a perpetrator should suffer additional punishment up to and including death if it can be shown that the perp's mind was suffused with a particular kind of hate, but that b) it is outrageous to claim mitigation on the ground's that the perp's mind was inflamed with panic at the prospect of homosexual advances.

There are some very alarming dents being inflicted in the supposed impartiality of judicial process, with trials and sentencing becoming dramatic productions, embodying the search for satisfactory personal revenge. The New Jersey State Legislature has been considering a law that will allow relatives to display a photograph of the victim as they address the jury. How long before they are granted the right to execute the condemned prisoner?

Alexander Cockburn is a columnist forThe Nation and author of a syndicated column, essays and books. The Times Literary Supplement called him “the most gifted polemicist now writing in English.” To find out more about Alexander Cockburn and read features by other columnists and cartoonists, visit the Creators Syndicate web page at COPYRIGHT 2000 CREATORS SYNDICATE, INC.