But then Custis immediately reiterated what his co-counsel Jason Tangeman had emphasized to the jury in his opening statement.
“The fact that Matthew Shepard made a sexual advance has relevance in this case, and it’s a fact in this case,” Custis said. “It’s something that Aaron McKinney responded to.”
By the time closing arguments were made in the case, little had changed in the accepted narrative of the crime and its underyling motives and circumstances. Cal Rerucha took the jury once more through the alleged sequence of events when Matthew left the Fireside Lounge with Aaron and Russell.
“Everything apperared to be normal,” he explained. “There was no disruption whatsoever. Why? Because McKiney and Henderson were calm, cool, collected. They were pretending to be homosexuals. Matthew Shepard left with them eagerly …
“What happened in this case? What happened to this … We have the deception where Henderson and McKinney pretended to be gay to lure Matthew Shepard out of the bar …
“In the area of the Walmart … that is when Mr. McKinney announced, ‘Guess what. I’m not gay and you’re getting jacked.’ ”
But those words, too, were part of the alibi Aaron had invented — and Kristen repeated.
During a lengthy interview that Russell gave voluntarily to police after he was sentenced to two life terms, Detective Rob DeBree asked him, “When it gets to the point where you are out by Walmart and Aaron demands the wallet, was there something that … it’s gay week, or whatever, and you are getting jacked, can you remember … what that statement was … up there?
“I remember [Aaron] saying something like that, but I don’t remember exactly what he said,” Russell replied. “I know he said, give me your wallet, you are getting jacked. I remember that” (italics mine).
Attorney Dion Custis admitted that his client had murdered Matthew and he acknowledged once more that Aaron had used methamphetamine on a daily basis. But then Custis went on to underscore again Matthew’s sexual interest in Aaron and Russell as a determining factor in the violence that followed:
[Aaron and Russell] didn’t deceive him. They didn’t trick him. They didn’t have to force him. They left. He had his own vehicle there. He could have gone anywhere he wanted to, but … he wanted to go with them. He was interested in them.
… Aaron McKinney told you in his statement. That when they were driving from the Fireside Bar up to that fence, that Matthew Shepard was telling him that he could turn them on to drugs for sex. We know that Matthew Shepard was interested in this. We also know that it’s consistent with his drug use. That he would say something to that effect. How else would Aaron McKinney know to say that? How could he make that up?
In his final remarks to the jury, Cal Rerucha was adamant that methamphetamine had nothing to do with the crime — a position he no longer holds today.
“The people at the [Fireside] bar … saw there was no apparent intoxication and no apparent situation, in fact, involving methamphetamine,” he said, “[and] you are left with a situation where that is what the [defense] lawyer wants you to believe, but that is not supported by the evidence in this case.”
Nonetheless, Cal’s parting words were eloquent and deeply felt — and they continue to reverberate today:
Read Mr. McKinney’s statement. It talks about fags and queers. Matthew Shepard was not an animal to be hung on a fence. Matthew Shepard was a human being. Matthew Shepard was somebody that loved and cried. Matthew Shepard is a person that deserves your dignity and your protection and your ability to follow the law in this case. You will do that and not be persuaded by half-empty jars. You will come back with a conviction for premeditated first-degree murder, robbery, and kidnapping because that is what the evidence shows.
While the jury was deliberating, Cal took a walk with his father, Elmer Rerucha, a retired cement factory worker, at the edge of a game preserve on Laramie’s south side. A herd of antelope was grazing on the prairie.
“I was looking out my office window this morning, thinking that at one time they had hangings right in front of the courthouse,” Cal told his father. “Everything seems to have changed, Dad, but maybe nothing has.”
“You didn’t go after the death penalty lightly, Cal,” Elmer responded, as if he were reading his son’s thoughts.
“You’re never the same person after you make that decision, though. I’ve been sneaking off to church every other day, praying I know the difference between duty and revenge.”
Elmer pondered the thought for a moment.
“When I got wounded in the Second World War, I was nineteen,” he said. “Out there in the battlefield I used to pray for the same thing.”
Cal pointed to the hills stretching out before them. “Whenever I come out here with the boys on our bikes, I think about that time when I was hunting with you. Remember the opossum? I couldn’t have been more than ten.”
Elmer raised one eyebrow as if he didn’t remember — or at least he was pretending not to. “Which time was that?”
“You know which time. The opossum jumped up on my rifle and he’s walking down the barrel, right there in my face, and I’m yelling at you to shoot him. And you wouldn’t do it.”
“Well, you lived to talk about it, right? He didn’t bite you.”
“Scared the hell out of me, though.”
Cal’s father glanced at him knowingly. “Something’s gotta put the fear of God in us, Cal.”
The jury of seven men and five women found Aaron guilty of kidnapping, aggravated robbery and second-degree murder, but not guilty of premeditated first-degree murder. His conviction could still bring him the death penalty, however.
The most unexpected turn in the case came when Matthew’s parents agreed not to seek the death penalty in exchange for Aaron waiving all future appeals and refraining from talking to the media. It appeared to be a gesture of supreme mercy, but, in actual fact, multiple factors went into the decision to forgo the death penalty. Had the case proceeded to the penalty phase as required by Wyoming law, previously concealed information about Matthew, Aaron, and Russell — which had been inadmissible during the trial — could have been presented to the jury.
With the national media waiting in the halls of the courthouse and lining Grand Avenue outside, Cal had shown Judy and Dennis Shepard into the law library down the hall from his office. It was the only place where they could find some quiet refuge. The possibility that Aaron McKinney could be sentenced to die by lethal injection had infused an already-tense atmosphere with a new sense of urgency.
As soon as they sat down, Dennis spoke first. “Thank God we’re almost done with it, Cal,” he said. “I couldn’t take another week of it.”
Cal leaned his tired frame against the chair and looked at Dennis. After talking with Rob DeBree, Cal sensed what was coming.
Judy began slowly. “I need to ask you something, Cal.”
“Of course, Judy,” he replied. “Anything at all.”
She hesitated at first, choosing her words delicately. “Would you mind if — after everything you’ve put into this — if we set aside the death penalty?”
Cal was more dazed than surprised. His eyes just held Judy’s. Then he turned to Dennis, who quickly jumped in.
“You know how I feel about McKinney’s lawyers, Cal — like we all do,” he said. “They offered us life without parole, no appeals, no contact with the media. I just want this bastard to be forgotten.”
Judy gazed strongly at Cal again. “What do you think about that?” she asked.
“I don’t want to hear it is what I think,” he answered reflexively.
“I know you’re pissed at me about this, Cal,” she went on.
“I’m not pissed at you, Judy. I just don’t know how you can do this.”
“Do you think less of me for asking you to do this?”
“No — God, no,” Cal said. “I think more of you.”
Cal paused and looked at Dennis, and then at both of them. “But this son of
a bitch deserves to die. He’ll do worse if he can get away with it, we all know that.”
Judy nodded wearily and leaned in closer to the table.
“I lost my son, Cal, I’m not getting him back,” she explained. “All I’ve been thinking is, what would Matt want? Can more be accomplished? Everyone’s expecting us to be vengeful now. What if we step back from the violence, despite what they did to Matt? How will people look at this years from now?”
“We want them to remember Matt,” Dennis added, “what he stood for.”
Cal was silent for a moment as he took in their words.
“Whatever you both want, I’m with you on it,” he told them. “This can’t be about my personal emotions. It’s a lot bigger than me.”
Judy’s moist eyes met his again. “It’s bigger than all of us, Cal,” she said.
THIRTY-SEVEN
Big Stone Gap
My investigative journey held many surprises, but none was as unlikely or unthinkable as the friendship I’ve witnessed between Ted Henson, Matthew’s longtime friend and lover, and Russell Henderson, who is now in the fifteenth year of his double life sentence.
Ted had been telling me for a couple of years that he wanted to meet Russell in person. While the idea sounded noble in principle — it signified the hopeful possibility of atonement and perhaps forgiveness between one of the many victims of Matthew’s murder and a perpetrator of the crime — I also felt wary about being the person to facilitate it. But Ted kept pressing me, insisting that we go together to the Virginia prison where Russell was then incarcerated.
Four years had already passed since Ted and I began communicating. He mentioned several times that he’d grown to trust me and was confident I’d give him the support he needed to face Russell. I was gratified by his trust but nervous just the same.
In a string of emails to me, Ted had written:
The only problem I am having with Russell is, how come he didn’t call someone when he got back in town [after they left Matt at the fence] …
The only thing I want from Russell is for him to be honest [with] me and open. That is it. I have an open mind on hearing from him and what went on … I think he is just trying to find the right words to say to me …
Matt was a very forgiving person and I know that everything I am doing Matt would have done the same if he was [sic] alive today …
I would like to meet [Russell] in person and hopefully you would be there with me on that.
By then Ted had been having regular phone conversations with Russell’s grandmother Lucy Thompson and had even sent her flowers. He said their talks about Matthew were “comforting” to him and that he could unburden himself easily about other issues in his life. As a single, gay parent who had adopted his son at birth, Ted felt Lucy “knows a thing or two about caring for kids.”
“I think Lucy and I have gotten a very good friendship going,” he stated in the same email. “I sent those flowers … because I was thinking about her.”
But the following week, on Valentine’s Day, I sensed again the rawness of Ted’s emotions. He wrote about “how much love matt and i [had] for each other,” yet went on to say:
Matt was a person who could not hold his liquor too well at all. He always got emotional when he was drunk … [Matt] would be passed out and [he] would wake up like nothing happened …
I guess I should have kept him under lock and key sometimes. Then none of this mess would have happened to him.
I wondered if Ted had confided in Lucy about this, as her daughter Cindy had suffered from alcohol and drug abuse, but I didn’t ask.
I’d also been curious for months about Ted’s motives for communicating with Lucy, and now Russell. I couldn’t tell if it was a gesture of compassion, however unusual, or if there was an element of conscience or guilt that had prompted him to break his silence about Matthew.
Ted’s reference to Matthew being passed out from alcohol reminded me of other incidents he’d recounted — times when he said Matthew became nauseated and physically ill from excessive drug use, especially crystal meth. According to Ted, these were problems Matthew had coped with while living in Denver in 1997–98 — before he moved to Laramie — and even prior to 1997.
Matt’s drug habit got worse and I could not take seeing someone that I love so much doing it, so I left him one day while he was gone to a friend’s house. Then Matt would call me telling me that he would not do drugs anymore, and if I did not come back he would kill [himself]. I knew that Matt did what he said he would do.
I waited a long time before I got up the courage to ask Ted if he knew any of Matthew’s friends from the Denver circle. Though he’d grown to trust me, I was afraid of losing him as a source again. But someone from inside the circle had already admitted knowing Ted and confirmed his close association with Matthew in 1997–98.
When I finally broached the subject, Ted responded:
yes, i know of them. i had a feeling that carl [head of the Denver group] and matt messed around some, and i asked matt about it and all matt said was “no.” but I didn’t believe that at all. i can honestly tell you i have not talked to any of them in a long time … everyone thought of me as an ass, because i didn’t do a lot of the things that they did and I tried to keep matt [away] from all of them.
On a crisp November afternoon in 2008 — a decade after Matthew’s murder — Ted and I met at the airport in Knoxville, Tennessee. As I came through security, I could see him waiting next to a sun-splashed fountain in the middle of the terminal. Water cascaded over a long bed of rocks, simulating a mountain stream in the Ozarks. Three days later when I returned to the airport, patches of artificial snow would decorate the rocks, signifying another change of seasons.
Ted and I greeted each other warmly. I was relieved to find him smiling, with his round, boyish cheeks exuding a healthy glow. A few days earlier, as we were firming up plans to travel to Wallens Ridge State Prison in southwestern Virginia, he’d been suffering from migraines, chest pains, and other ailments. The last time I’d seen Ted face-to-face he was in a Memphis hospital recovering from surgery for congestive heart failure.
But he was determined to make the trip to meet Russell. He told me several times that he wasn’t going to let his heart condition get in the way of that. We just had to make sure in advance that prison authorities would allow him to bring along his nitroglycerin prescription, in case he needed an emergency dose while we were inside. Once they agreed, Ted was good to go.
A short while after we left the airport, coasting in a rented white Pontiac across the Tennessee border into Virginia, we quickly lost ourselves in conversation — and without realizing it lost our sense of direction as well. Our two-hour road trip to the town of Big Stone Gap, home of the prison in the heart of Appalachia, turned into a four-hour, winding journey through the darkened hills of Jefferson National Forest.
Despite a lot of joking back and forth about who was to blame for getting us lost, I could feel Ted’s trepidation about meeting Russell the next morning. He admitted as much but tried to reassure both of us.
“Look, I bet you anything Russell’s feeling the same thing right now,” he said. “Don’t you think he’s got a million things running through his mind, too?”
The following morning, after a country breakfast of eggs, bacon, ham, and grits, topped off with biscuits and gravy (“the Hungry Man Special”) — Ted had picked at his food while I anxiously stuffed myself — we got in the car and climbed another steep road to the flattened hilltop where the prison sits.
Ted later recalled how he felt during the trip and afterward:
On the plane ride there all I thought about was what to say and how to react towards [Russell].
The morning of going to visit [him], I was very nervous and confused. I was wondering if what I was doing was right or was it wrong.
But I knew I had to see Russell; he was one of the last people … to have touched Matt when Matt was alive.
When we got [in
to] the prison there was a very long walkway to the visiting room … That seemed like the longest walk. [I had] knots in my stomach but felt alright since Steve was there with me.
Once I met Russell, I just sat there and listened to [him] speak for a while. He said, “I’m sorry,” I cannot remember how many times …
And Russell told me exactly what happened that night. I knew — I could see it in his eyes and face that he was not lying to me.
Russell and I spoke of a lot of things and the visit became more relaxed and more comfortable.
The reason I had to see Russell is because I felt the need and also [because] Matt was a very forgiving person. I felt that if Matt would have lived he would have done the same thing that I did and [gone] to see Russell.
Since my visit, and before my visit, we’ve written back and forth many times and are continuing to [write]. I feel that Russell is all I [have] left of Matt … I do believe in Russell and I am going to continue my friendship with [him] for the rest of my life. Or until Russell no longer wishes to stay in touch with me.
The hours of our prison visit hurried by. Three or four times I got up and went to the vending machines on the opposite side of the room, returning with cans of soda, chips, candy bars, and other junk food. But really I just wanted to leave the two men alone for a while and allow them some semblance of a private conversation without me noting every word they uttered. For this same reason, I won’t attempt to reproduce here the many things that were spoken about that day, with the exception of one brief exchange that has stayed with me over the past five years.
Early in the visit, Ted looked at Russell sternly. Ted’s face was drained of color and his lips were trembling slightly, as he confronted Russell with the question that had been troubling him more than any other.
“Why didn’t you let someone know Matt was out there — just call someone?” Ted asked in a muted voice.
Russell nodded gently for several seconds, yet the two men never broke eye contact.
The Book of Matt Page 35
