Judge may not allow 'gay panic' defense strategy

October 29, 1999
Web posted at: 6:40 p.m. EDT (2240 GMT)

In this story: 'A motive for the murder' Judge could decide by Saturday McKinney said he struck final blows Former girlfriend contradicts defense RELATED STORIES, SITES

From staff and wire reports

LARAMIE, Wyoming (CNN) -- The prosecution rested its case Friday in the gay attack murder trial of Aaron McKinney after District Judge Barton Voigt discussed with lawyers whether he should allow a controversial defense to be presented to the jury.

McKinney, 22, is charged with first-degree murder, kidnapping and aggravated robbery in the death last year of 21-year-old college student Matthew Shepard, who was beaten, tied to a fence post and left in a prairie. Shepard died five days later in a hospital.

Prosecutors did not call Russell Henderson, who pleaded guilty to murder and kidnapping and was sentenced to two consecutive life prison terms for his role in Shepard's death. Henderson had been expected to testify Thursday.

Friday morning, after Voigt had the jury escorted from the courtroom, he denied a motion by the defense for a directed verdict of not guilty.

'A motive for the murder'

MESSAGE BOARD Gay rights Crime and punishment Hate crimes   Background Matthew Shepard was lured out of a Laramie bar on October 7, 1998 -- allegedly because he was gay -- driven to a remote prairie, tied to a fence, pistol-whipped into unconsciousness and left for dead in freezing temperatures. A bicyclist who found Shepard, nearly hidden in the sagebrush, 18 hours later thought at first the 5-foot-2, 105 pound University of Wyoming freshman was a scarecrow. Taken to a hospital, Shepard never regained consciousness and died of massive head wounds on October 12, 1998. Aaron McKinney, 22, is the second person to face trial for murder in Shepard's death. Russell Henderson, 22, is already serving a life sentence after pleading guilty earlier this year.

Discussions then centered on the strategy the defense intends to pursue. Lawyers for McKinney claim the defendant was homosexually abused as a child and that the experience may have provoked the attack on the openly gay Shepard.

That defense has been dubbed "gay-panic syndrome."

"Without the [gay-panic] syndrome to support your evidence, how does it become anything other than a motive to kill? You are, in effect, giving McKinney a motive for the murder," said Voigt.

McKinney's lawyer responded that it was important for the jury to hear about McKinney's childhood history of what he has said were forced homosexual relationships.

"The jury should be able to hear who Aaron McKinney is," said Dion Custis, attorney for McKinney.

Judge could decide by Saturday

The judge then asked, "If I'm a lousy, rotten human being, and I use that as a defense, then the legal system becomes a shambles. Everyone will come in arguing that they aren't guilty of premeditated murder because they are a lousy human being."

Custis responded by citing cases where no expert witnesses were allowed to testify, but the court did allow evidence of what had happened to the defendants prior to the crimes.

Voigt summed up before recessing, saying, "There isn't much of a line here. And it's very, very difficult to decide where we should be."

Custis asked Voigt to decide where to draw that line as quickly as possible because, he said, the judge's decision about whether to allow the testimony will determine what witnesses are called to testify and in what order.

The judge indicated he could decide as soon as Saturday morning.

Prosecutors plan to seek the death penalty if they get a first-degree murder conviction against McKinney.

McKinney said he struck final blows

In an hourlong jailhouse recording played for jurors on Thursday, McKinney described how he and Henderson didn't intend to hurt Shepard, but to rob him.

As the three were riding in a pickup truck, Shepard "starts grabbing my leg and my genitals," McKinney told police. "I don't do that stuff.

"I hit him ... and he kept throwing himself all over me," he said.

Shepard was beaten, tied to a fence post and left in a prairie in Laramie, Wyoming; he died five days later in a hospital

McKinney said he continued the assault at a ranch a mile from Laramie, and let Henderson tie Shepard to a fence.

When the two asked Shepard if he had seen the license plate of their truck, McKinney said, Shepard read the plate numbers back. McKinney said he struck him three final times.

Though he thought Shepard would die there, McKinney didn't call an ambulance.

While the tape was played, the jury read along with transcripts. Shepard's mother, Judy, stared or gazed down.

Defense attorneys are trying to convince the jury McKinney is guilty of manslaughter rather than murder. They have argued that he snapped during a drunken, drug-induced rage after a sexual advance by Shepard triggered memories of a childhood homosexual assault.

Former girlfriend contradicts defense

Earlier, McKinney's former girlfriend testified that McKinney and Henderson plotted to pose as homosexuals and rob Shepard, and that McKinney later acknowledged they had killed someone.

McKinney claimed "a gay guy had been hitting on him (in the bar)," Kristen Price, 19, told jurors. "They decided in the bathroom to pretend they were gay, get him in the truck and rob him."

Later that night, McKinney, covered in blood, returned to their home and told her "he had killed someone," she said. He went to a sink to wash off a wallet, two driver's licenses and a voter registration card.

She also testified that she didn't see any sign that McKinney had been using drugs.

Her testimony was intended to counter defense contentions that the robbery wasn't planned and was related to drugs.

CNN's Peter Ornstein and The Associated Press contributed to this report.

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