McKinney, 22, is charged with first-degree murder, aggravated robbery and kidnapping in the October 1998 bludgeoning of the 21-year-old gay college student. Shepard was found tied to a fence, and died five days later of wounds to his face and head. McKinney admits to beating Shepard to death with a .357 magnum, but his legal team is fighting for a reduced conviction of second degree murder or manslaughter so McKinney can escape the death penalty. In his opening statement last Monday, Public Defender Jason Tangeman revealed McKinney’s history of homosexual experiences, including forced oral sex at the age of 7 and consensual gay sex at 15.

The most striking revelation in Voigt’s ruling, given that he’d already communicated his unhappiness about the gay panic defense, was the hint that he may rule out a manslaughter conviction entirely. The manslaughter plea formed the very heart of Tangeman’s opening statement last Monday, where he repeatedly hammered the phrase “five minutes of emotional rage and chaos,” and concluded with a direct call for the jury to convict on manslaughter.

“The Court is not yet convinced that a manslaughter instruction will even be given in this case,” Voigt’s letter concluded. “Such an instruction is not appropriate in a case that turns out to be ‘a premeditated gaybashing or robbery poorly disguised as’ homosexual rage.” In a final dig at the defense team, the statement quoted the very criminology journal article Custis had cited to support his position last Friday.

Voigt’s decision was complex. The prosecution has presented several legal routes to capital murder in the case, and McKinney’s team must refute all of them to escape a capital conviction, which could lead to the death penalty. The homosexual rage related to two of those theories in two different ways, which Voigt addressed independently.

Citing the crucial manslaughter defense, Voigt’s letter said the “heat of passion” argument must pass an objective test of “passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same or similar circumstances.”

“The reason for an objective test is obvious,” the letter goes on. “If the test were subjective, whatever stimulus that happened to ‘set off’ a defendant would be a defense to the malice element … If a defendant has a low tolerance for letting his wife stay late at the bar, killing her would be manslaughter. That cannot be the law. Is it murder if a white supremacist kills a white man who jostles him in a crowd, but only manslaughter if he kills a black man who does the same?”

Voigt conceded the defense team’s second basis for the controversial defense was “more difficult to resolve.” McKinney’s lawyers are contending that a combination of intoxication and rage left him mentally incapable of forming the “specific intent” to commit a murder, or even a robbery or kidnapping.

“There is nothing from which the jury could conclude that these homosexual experiences had any negating effect upon the formation of a specific intent,” Voigt wrote. “If anything, the proffered evidence may suggest to the jury that the Defendant had a motive to kill Matthew Shepard. Of greater concern is the probability that this evidence will confuse the issues and mislead the jury.”

Monday’s ruling was dated Oct. 30, but released to the press Monday morning, with no mention in open court. The defense continued to call witnesses, and the sequestered jury was presumably unaware of the entire controversy.

The gay panic defense actually dates back several decades, but has come under increased scrutiny in recent years, as gays have come out of the closet and demanded equal rights. Voigt’s letter cited gay panic cases dating back to the ’60s, and law journals have documented cases decades earlier.

Many Americans first heard the term during the high profile Jenny Jones trials, where defendant Jonathan Schmitz successfully reduced a murder-one charge to manslaughter for killing Scott Amedure after Amedure revealed a gay crush on a taping of the show which never aired. Schmitz is now serving 25 to 50 years.

No comprehensive data exists on the prevalence or success of the gay defense, largely because it is rarely labeled as such by attorneys. But Jeffrey Montgomery, monitoring the trial for several prominent gay rights groups, says it seems to be trending downward.

McKinney contends that Shepard grabbed his leg or his groin in the truck last October, and that was the trigger point for the beating his own attorney labeled “savage.” Despite Voigt’s disapproval of a gay panic defense, some observers believe such an argument could still play a role at the trial.

Voigt’s insistence that jurors assess McKinney’s violent reaction against an “objective test” of a “reasonable person’s” reaction to a gay overture worries some gay rights advocates, because in the past, many juries given those same instructions have refused to convict on first degree murder — apparently believing that a reasonable person might have a violent reaction to a gay pass.

Voigt’s order did not forbid attorneys from continuing to argue that the alleged grope clouded McKinney’s reasoning, and just the specter of its
existence has persuaded many juries in the past. Monday afternoon, the defense called a straight bartender as its final witness to testify that Shepard made a pass at him in Cody, Wyoming less than two months before his death. The bartender said he decked Shepard and knocked him unconscious, but then drove him home from the lake where the incident occured.

Voigt made no mention of how he would address the evidence already presented to the jury, but the letter said “closing arguments will have to be consistent with thedecisions reached herein.”

Montgomery cautioned that gay panic isn’t always introduced as a legal defense, but an emotional appeal to one or two jury members. “It’s designed to appeal to something in a juror’s mind that is already queasy about the gay thing,” he said. “All the defense has to do is introduce reasonable doubt in one of 12 people.”

McKinney’s primary hope to escape a first-degree murder conviction now rests on the intoxication defense, considered a long-shot by legal analysts. And his faint hope for that defense was probably undermined by the gay panic strategy thrown out Monday.

The voluntary intoxication defense is rarely successful, legal analysts advised Salon News, because the threshold to achieve it is extraordinarily high. Defense attorneys must convince the jury McKinney was so intoxicated that his mind was incapable of forming intentions — legally “specific intent” — and then pursuing them.

Legal analysts also say that McKinney’s lawyers probably destroyed any shot at the intoxication defense by pursuing gay panic, which unequivocally demonstrates McKinney’s ability to formulate mental reactions.

During Friday’s hearing, Judge Voigt seemed to agree. “You are in effect proving that Aaron McKinney had a motive to kill Matthew Shepard,” he told the defense team. “How does it become anything other than a motive to kill?”

Given Monday’s ruling, McKinney’s only other significant hope rests on a strategy downplayed during the opening statement: lack of premeditation, which is a
separate legal concept from the manslaughter argument involving the “heat
of passion.” The defense has always contended that the beating occurred
spontaneously, with McKinney’s confused sexual history the chief rationale.
They attempted to demonstrate that point during cross examination of prosecution witnesses last week, but did not present witnesses of their own to reinforce that defense.

McKinney laid the groundwork for the unpremeditated defense in his confession taped two and a half days after the beating, Oct 9, 1998. “I think I killed someone, and I don’t know why,” he said on the tape played publicly Thursday for the first time. “It’s like I was possessed or something … I blacked out … lost control.”

But the tape was played by the prosecution, because it seriously undermines much of the defense strategy. Late in the hour-long interview, McKinney acknowledges hitting Shepard twice with the .357 magnum in the truck, several minutes before the main beating at the fence. But most damning is the final question he poses before finishing Shepard off. He describes his concern that Shepard might recognize him.

“I was trying to lie like I had California plates,” he says, but doubts Shepard’s buying it. So he asks Shepard if he can make them out. “He read my license plate and that’s why I hit him a few more times.” At that point, Shepard passed out, chunks of his skull crushed down into his brain cavity.

Two days earlier, spectators audibly gasped at the first sight of the weapon that inflicted such damage. The beating has routinely been described as a “pistol whipping,” but the foot-long revolver Rerucha raised in a glass case was a far cry from the handgun that phrase conjures. It’s actually an old-fashioned Smith and Wesson right out of a John Wayne movie, with a 10-inch barrel McKinney used for staggering swings, he explained in the confession.

Just hours before the confession was finally played, Kristen Price, McKinney’s then-girlfriend and mother of his child, testified that he arrived home several minutes after the attack and announced, “He thought he killed a some guy.” He turned off all the lights, ran to the bathroom to wash the blood off Shepard’s two driver’s licenses, she said.

Throughout the confession, McKinney maintained that he only intended to give Shepard a ride home, suspecting, but never sure that he was gay. “I kinda thought he might be a faggot, but all he ever did was ask for a ride home.”

However, Price testified that McKinney told her a different story shortly after the attack, while the two killers and their girlfriends scrambled to destroy the evidence and get their stories straight.

“He and Russ went to the bathroom [at the Fireside Lounge] and pretended they were gay to get [Shepard] in the truck and rob him,” she said. Aside from the doubt that casts on McKinney’s alleged panic, premeditation of the robbery would be enough to end his life, if the jury buys Price’s testimony. According to Wyoming law, premeditation of either the aggravated robbery or the kidnapping would lead to a capital “felony murder” conviction, regardless of whether McKinney actually intended to kill Shepard.

The defense tried to undermine Price’s testimony by suggesting she was lying to obtain a reduced sentence in her own trial next January, for her role in the killing as accessory after the fact. She could receive up to three years in prison.

The major wild card remaining after the decision revolved around the mysterious non-testimony of Russell Henderson, the only other living person who really knows what happened that night. Henderson was named as a key witness for the prosecution, and was scheduled to testify last Thursday. He was transported 100 miles from the state penitentiary in Rawlins, and actually sat down in the witness chair and smiled at reporters during a recess immediately before his scheduled appearance.

But after a lengthy closed-door hearing, he was inexplicably pulled from the witness list and the prosecution rested its case Friday morning without calling him. Speculation was rampant that he might testify for the defense, but that never happened.

In his plea bargained case last April, Henderson testified that McKinney struck all the blows, but he was never asked about motives or the role of Shepard’s sexuality. Homosexuality was never mentioned during the abbreviated trial and sentencing, which left Henderson serving two consecutive life sentences without possibility of parole. Plea bargains in such cases typically impose a requirement of testimony against the co-defendant.

McKinney’s confession confirmed that he never saw Henderson strike a blow, but that Henderson enjoyed much of the beating and insisted they leave Shepard out there. “[Henderson] was laughing at first,” McKinney said. “Then it became more serious.”