“Gay panic”

In an effort to keep their client from the death penalty, defense lawyers in the Matthew Shepard murder trial evoke a strange "gay panic" defense.

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Aaron McKinney bashed Matthew Shepard’s skull through his brain stem last October because McKinney was “humiliated in front of his friend” by a sexual advance. That’s the story assistant defense attorney Jason Tangeman presented in a Laramie courtroom Monday afternoon.

McKinney, who is charged with first-degree murder, aggravated robbery and kidnapping, could face the death penalty. But Tangeman is trying to reduce the severity of the crime to second-degree murder or manslaughter, which would wipe out the threat of the death penalty.

Several observers had predicted the defense team might resort to a “gay panic” defense later in the trial, if it could not convince the jury that drugs and alcohol diminished McKinney’s ability to understand the severity of the crimes he committed. But no
one in the stunned courtroom seemed prepared for the risky defense outlined in Tangeman’s opening statement. Nor were they prepared for the follow-up development: Tangeman argued that McKinney erupted “savagely” not because he was some sort of country hick who’d never crossed paths with a gay guy, but because of his own homosexual experiences.

At the age of 7, McKinney was forced to suck another boy’s penis, Tangeman announced. “Aaron will tell you this humiliated him. He did carry it with him.” At 15, McKinney willingly engaged in a homosexual act one time with a cousin, according to the lawyer. And not long before the murder, he inadvertently
entered a gay church with his girlfriend and fled sobbing from the sight of men kissing.

Reaction from the gay community was swift and severe. Jeffrey Montgomery, spokesman for the National Coalition of Anti-Violence Programs, staggered out of the courtroom, collapsed in a chair and gasped, “I’m almost speechless. I never thought they’d be so blatant.” He said he’d observed more than a dozen
“gay panic” defenses, including the “Jenny Jones” trial — a highly publicized murder case using the controversial defense strategy, which suggests that a defendant is thrown into a panic by a sexual advance from a person of the same gender — but had never seen any so extreme. “Everyone thought it was going to be subtle,” he said. “He’s put [Shepard] on trial. It’s a scoundrel’s defense, it’s a bankrupt defense, but it’s all they have left.”



Tangeman also outlined a defense based on the fact that McKinney was under the influence of methamphetamines and alcohol; the jury could return a lesser verdict of second-degree murder or manslaughter if they found that he was too intoxicated to clearly understand his actions. Certainly McKinney was fueled by those chemicals, his lawyer argued, but the attack was unleashed by a sexual advance from Shepard that recalled
a “haunted” and “sexually confusing” past and threw him into a blind rage.

Despite claims by the prosecution that McKinney and his friend Russell
Henderson lured Shepard from the bar that night, Tangeman said he will call witnesses who will prove Shepard made the first advance. “Shepard was looking for some kind of sexual encounter with Aaron and Russell,” the defense lawyer said. They agreed to leave together, and once in the truck, “Shepard reached over and grabbed [McKinney's] genitals and licked his ear.”

“This humiliated him in front of his friend,” Tangeman said.

Surprisingly, prosecutor Cal Rerucha’s opening statement
played down the hate-crime issue that has focused national attention on the Shepard case, framing the case as a simple robbery gone bad, which turned into a murder.

But Rerucha left the door open to argue that Shepard was targeted because of his sexual orientation, describing what McKinney told Shepard once the three were
inside McKinney’s truck: “We are not gay, and you’re getting jacked.” Rerucha offered no explanation as to whether the remark signaled the killers’ motivation for the attack, or was perhaps a simple effort to intimidate someone they intended to rob.

The central points of contention in the case now appear to be who made the first advance, McKinney’s level of intoxication, premeditation of the robbery and, most importantly, McKinney’s intent to finish Shepard off.

Rerucha broke down the beating into three distinct phases: one in the truck, a second around the time Henderson tied Shepard to the fence and a final series of blows Rerucha says prove McKinney’s intent to kill — which is key to obtaining a first-degree murder conviction. According to Rerucha, McKinney admitted in his confession to police that his chief concern toward the end of the episode was whether Shepard could identify him. He was unsure if Shepard bought his story that he was visiting from California, and the crucial question was whether Shepard could still see well enough to read his license plate. He asked Shepard if he could read the plate, and when he did so successfully, McKinney raised his .357 Magnum again, said Rerucha, and “looks down at Matthew Shepard defenseless … and strikes him as hard as he can in the head. Once … twice … three times … He knows in his own mind Matthew Shepard is dead or will soon be dead.”

Tangeman said McKinney only intended to knock Shepard out. The lawyer repeated over and over again through his 30-minute statement that McKinney told police, “I didn’t mean to kill him.” He promised to play the audiotape of the confession for jurors to demonstrate the sincerity in McKinney’s voice.

Wyoming law allows for several possible avenues to the death penalty in this case. If the prosecution can demonstrate “specific intent” to kill Shepard, the jury would be required to deliver a first-degree verdict. The defense will attempt to refute that intent three ways: directly arguing that he only thought he was knocking Shepard out; using the “gay panic” implication that McKinney lost the ability to reason out intent and acted “in the heat of passion”; and invoking Wyoming’s diminished-capacity clause to argue that drugs and alcohol left McKinney incapable of that judgment.

In a lengthy and complex set of instructions presented to the jury, Judge Barton Voight explained that if it finds McKinney was so highly intoxicated that he was incapable of such specific intent, it would have to reduce the verdict to second-degree murder or manslaughter, unless the first-degree charge was satisfied in another way. Under Wyoming law, that other way could be as simple as Shepard dying as a result of another felony, such as aggravated robbery or kidnapping. But those felonies also require a sound enough mind for specific intent.

Tangeman hammered most insistently on phrases echoing the manslaughter definition of “sudden heat of passion” read by Judge Voight earlier. “Five minutes of emotional rage and chaos,” Tangeman repeated like a mantra. He ended his presentation by calling on the jury to convict his client of manslaughter. Shepard did not deserve to die for his advance, he said, but McKinney was still not guilty of murder.

Dave Cullen is a Denver writer working on a memoir, "In a Boy's Dream."

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