McKinney's 'Gay Panic' Defense Assailed
By George Lane
Denver Post Staff Writer
Oct. 28 - LARAMIE - The judge presiding over the trial of Aaron McKinney lobbed a hand grenade into the defense Wednesday morning by saying he may not allow a "gay panic'' and voluntary intoxication defense to be presented.
After the jury had vacated the courtroom for the mid-morning recess, a scolding Judge Barton Voigt informed the court-appointed attorneys for McKinney, accused of murdering gay University of Wyoming student Matthew Shepard, that he was not pleased to learn of a proposed voluntary intoxication defense through comments the attorneys made to panels of prospective jurors two weeks ago.
"Then in opening statements I learn of a gay panic defense,'' Voigt said.
The judge, who didn't raise his voice or otherwise show anger, lectured that the state of Wyoming has no statute for a gay panic defense or a statute for a diminished capacity defense.
He said it was improper for McKinney's attorneys to first mention these defenses in remarks to the jury and not during hundreds of hours of pretrial conferences during the last year.
"I'm very concerned about this and where this case is going,'' Voigt said. "I need someone to convince me that a case can be raised in Wyoming without a statute.''
During opening remarks to the jury Monday, co-defense counsel Jason Tangeman told the jury that McKinney never intended to kill Shepard, but he began beating him because Shepard made homosexual advances toward him. McKinney was enraged by these advances because as a child he had been forced to commit homosexual acts, Tangeman said.
"We never stated that this is a "gay panic' defense,'' defense attorney Don Custis told the judge Wednesday. It was the news media that gave the gay panic label to the defense, he said.
"What we have said is that Matthew Shepard made a homosexual advance and that is a fact in this case,'' Custis said. "It goes to his state of mind at the time and that is admissible.''
Following the morning court session, Jeffrey Montgomery of the National Coalition of Anti-Violence Programs said he was impressed to hear the judge's remarks.
"This could be one of the first times that this defense was directly questioned by a judge,'' Montgomery said.
McKinney - sitting at the defense table wearing a dark suit stretched over a bulky bullet-proof vest - is accused of pistol-whipping the 21-year-old Shepard into a bloody pulp and leaving him tied to a fence east of Laramie to bleed to death. If convicted of first-degree murder, the 22-year-old former roofer could face the death penalty.
Russell Henderson, McKinney's friend and drinking companion on the night of Oct. 6, 1998, when they encountered Shepard in a Laramie bar, already has accepted a plea bargain that gave him two life sentences.
Henderson fingered McKinney as the one responsible for the fatal beating and is expected to testify against McKinney.
Two weeks ago, Custis told prospective jurors that McKinney was "involved'' in the brutal pistolwhipping of Shepard, but he said McKinney was too drunk on alcohol and high on speed to form the intent necessary to be convicted of the first-degree premeditated murder charge.
Wyoming defense attorney Keith Goody, who is not involved in the case, said in a telephone interview that while there is no state statute for "diminished capacity'' it is a defense in Wyoming and the defense attorneys in this case are within their rights.
"The judge can be as angry as he wants, but he's got to follow the law,'' Goody said. "The defense attorneys aren't there to make it convenient for anyone, including the judge. This is not a game. This is life and death.''
The trial continues later today.
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