October 27, 1999
Web posted at: 11:00 p.m. EDT (0300 GMT)

In this story: McKinney's lawyers say defense can be supported Victim's blood, wallet linked to defendant RELATED STORIES, SITES

LARAMIE, Wyoming (CNN) -- The judge in the trial of Aaron McKinney, charged with murder in the 1998 beating death of an openly gay Wyoming college student, said Wednesday that he might not allow defense attorneys to pursue a so-called "gay panic" defense.

Albany County District Court Judge Barton Voigt said a defense based on the argument that McKinney acted out of fear generated by an alleged sexual advance by the victim, Matthew Shepard, is not supported by Wyoming law.

VIDEO CNN's Don Knapp reviews what each side will present to the jury. (October 26) Real 28K 80K Windows Media 28K 80K CNN's Don Knapp reports on how the publicity has affected Laramie, Wyoming. (October 11) Windows Media 28K 80K MESSAGE BOARDS Gay rights Crime and punishment Hate crimes

In opening arguments to the jury, attorneys for McKinney conceded that he and another man, Russell Henderson, assaulted Shepard, 21, a University of Wyoming student who was beaten and left hanging on a fence post outside of Laramie on Oct. 7, 1998.

Shepard died five days later after suffering massive brain damage. The slaying shocked the nation and resulted in calls for stronger hate crimes laws covering gay men and lesbians.

But the defense contends that McKinney acted in a drug-fueled rage after Shepard made a sexual advance at him -- a rage that defense attorney Jason Tangeman also said was fueled by McKinney's "sexually traumatic and confused history," including being molested at age 7.

After asking the jury to leave the courtroom, Voigt expressed his reservations about the strategy outlined by the defense.

"The problem is that the jury is now expecting to hear this defense, and I'm not sure I'm going to allow it," said Voigt, who didn't issue a final ruling on whether he would bar that line of defense.

In response to Voigt's comments, McKinney's attorneys argued that they don't intend to present a "gay panic" defense but are merely trying to establish McKinney's state of mind at the time of the killing. They promised to present Voigt with research supporting their position.

McKinney, 22, is charged with first-degree murder, kidnapping and aggravated robbery. Prosecutors are seeking the death penalty. Henderson has already pleaded guilty to murder charges and received two life sentences. He has been subpoenaed to testify in McKinney's trial.

McKinney, Henderson and Shepard met at the Fireside Lounge, a Laramie bar, and left together in McKinney's truck. Prosecutors allege that McKinney beat Shepard repeatedly on the way out of town, hung him on the fence and then hit him in the head with a .357-caliber handgun before leaving him to die in the autumn cold.

During Wednesday's testimony, law enforcement officers described both the crime scene and a search of McKinney's truck, which turned up Shepard's credit card on the dash. They also testified about a search of McKinney's apartment, where Shepard's wallet was found wrapped in a dirty diaper.

Melissa Smrz, an agent from the FBI's crime lab in Washington, testified that DNA tests matched Shepard's blood with blood found on McKinney's gun, in McKinney's truck and on Henderson' jacket.

The tests on McKinney's gun also detected blood from both Henderson and Dmiliano Morales, one of two men with whom McKinney and Henderson scuffled in an unrelated altercation that took place shortly after Shepard was beaten.

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