McKinney guilty in Shepard murder

But legal experts say the jury's refusal to convict him on premeditation charges may save the 22-year-old from the death penalty.

Topics:

After 10 hours of deliberation, a jury found Aaron McKinney guilty Wednesday of first-degree felony murder in the bludgeoning of gay student Matthew Shepard. McKinney was acquitted on the higher charge of premeditated first-degree murder. The same jury now must decide whether to impose life without parole or death.

Testimony begins Thursday morning in the penalty phase, expected to last more than a week.

The complex case presented the jury with five different murder and manslaughter options, and the possibility of up to three simultaneous murder convictions. Legal experts said the jury’s mixed verdict all but eliminated any chance of a death sentence.

On the first, key question, the jury chose the middle option of second degree murder, meaning McKinney killed Shepard “maliciously,” but without premeditation. That conviction carries a sentence of 20 years to life. Regardless of that choice, Wyoming law then required the jury to convict on two separate “felony murder” charges if they found that Shepard died as a direct result of an intentional kidnapping or aggravated robbery. They found McKinney guilty on both those counts, each of which can be punished by death.

But relatively liberal Albany County hasn’t seen a death sentence in decades, and the finding against premeditation sent a clear signal of the jury’s intentions. Former federal prosecutor and University of Wyoming law professor Gerald Gallivan called the verdict a best-case scenario for the defense, given McKinney’s earlier confession.

“If you get a jury that goes on felony murder and not premeditated murder, you probably have a good predictor of what they’re going to do relative to the penalty phase,” he said. A unanimous decision is required for death.

The jury of seven men and five women also convicted the 22-year-old roofer of kidnapping and aggravated robbery.

A collective gasp rang out from the gallery at the announcement of the single not-guilty verdict, but reactions from the attorneys and families were muted all around. The attorneys remain under a gag order and none of the parties would comment. McKinney bit his lower lip and bowed his head when the first capital conviction was read.

McKinney confessed to his role in the crime just two days after beating Matthew Shepard with a .357 magnum and abandoning him tied to a fence in the country. Three days later, the gay college student died from severe brain damage. McKinney’s attorneys spent the trial fighting for a reduced conviction to escape the death penalty. Co-defendant Russell Henderson plea bargained two life sentences without possibility of parole last April.



Fallout from McKinney’s controversial gay panic defense was difficult to gauge, because of the complexity of the legal theories the jury was asked to consider, and the mixed verdict they returned. Judge Barton Voigt barred testimony concerning McKinney’s homosexual history Monday, but the jury heard an overview of it in the opening statement, and a watered down panic defense dominated the closing argument. Public Defender Dion Custis neatly summarized the defense just before the jury began deliberations: “It started because Matthew Shepard grabbed his balls. It continued because Aaron McKinney was a chronic meth user.”

“Half of the panic defense got into this trial,” said David Smith, spokesman for the Human Rights Campaign. “The cornerstone of the defense case was anti-gay prejudice.” He was elated that the jury convicted McKinney of malice in spite of those elements. “We feel this verdict was fair and justified, and it sends a message to the country that these crimes will not be tolerated,” he said.

But Jeffrey Montgomery, monitoring the trial for several other prominent gay rights groups, saw the lesser conviction as a partial success for the gay panic defense. “I think those gay panic elements had some resonance with this jury. It may have even been a subliminal resonance which made them go for the lower verdict.” Graham Baxendale, a political science professor who was teaching an advanced course in hate crimes at the University of Wyoming when the murder happened, agreed. He felt the malice conviction was inevitable, and the limited gay panic defense may well have swayed the jury away from the first degree premeditation conviction. “If you get two or three [jurors] on the intoxication, and two or three on gay panic, this has a cumulative effect,” Baxendale said.

Attention now turns to the penalty phase, where the full gay panic defense will finally be aired. Judge Voigt’s Monday ruling gutted the primary defense, and McKinney’s attorneys responded by calling only seven witnesses, less than a full day of testimony. But Voigt’s ruling allowed the homosexual history to be presented during the penalty phase. After the verdict, Voigt’s legal clerk projected six days of penalty testimony, more than during the trial itself.

Public interrogation of McKinney’s formerly secret homosexual past is likely to further rupture this small town, which has already suffered a year of intense negative publicity. Public Defender Jason Tangeman announced in opening statements that a neighborhood bully forced McKinney to perform oral sex at age 7, followed by consensual gay sex with a cousin at 15. The town awaits disclosure of the participants’ identities, but the defense has already named police detective Dave O’Malley’s son as a witness to those events.

Gay rights activists who cheered Voigt’s earlier ruling are also bracing for the worst. “I think it’s going to get much uglier during the penalty phase,” David Smith said. “The defense is going to be given carte blanche to pursue the gay panic defense.”

The shift to the penalty phase also commences a role-reversal for some of the major cultural forces with a stake in the trial. Liberal-leaning gay rights leaders tend to condemn capital punishment, and many will now side against the prosecution, though not necessarily publicly. Two of the major gay groups signed a letter last spring condemning the death penalty, but most refused an official stance.

Meanwhile, certain elements of the Christian right are calling for McKinney’s execution. One fringe Christian group staged a reenactment of the murder outside the courthouse and called for McKinney to be turned over to the Shepard family for execution as the jury began deliberations Tuesday.

Judy and Dennis Shepard, Matthew’s parents, have refused comment on the death penalty since the murder.

McKinney is likely to take the witness stand in the coming week, to tell his full version of the story for the first time. The defense objective is to convince the jury of mitigating factors, particularly McKinney’s intentions and state of mind as he beat Shepard to death.

The decision to put him on the stand will be a tough call for his attorneys, because it will open him up to potentially damaging cross-examination. But professor Gerald Gallivan feels they have little choice. “I would suspect you almost have to put him on,” he said. “A jury who is trying to determine the state of mind of this guy might feel cheated if they didn’t hear from the guy.”

The prosecution must show aggravating factors to justify death, and intent to kill Shepard as a witness will likely top the list. Gallivan said that the Supreme Court laid out criteria which requires the prosecution to distinguish capital crimes as particularly cruel and heinous. “They’re really trying to ask: How bad is this guy?” he said. “We know he’s bad, but is he that bad that we want to kill him?”

At trial, prosecutor Cal Rerucha made much of McKinney’s taped confession, where he admitted to fearing Shepard would recognize him and be able to identify him to police. He then asked Shepard if he could read his license plate, and when he was able to, he dealt him the final blows. However, the jury’s refusal to convict on premeditation may signal they were unconvinced that meant McKinney was ruthlessly trying to finish Shepard off. It’s likely to be an area of intense interrogation if McKinney does take the stand.

Death sentences are rarely even attempted in Albany County, and after the last failure in January, locals pronounced it almost unachievable. In that case, three prison inmates were convicted of brutally stabbing and beating a guard to death with a fire extinguisher in a jailbreak from the state penitentiary. All three were convicted in separate jurisdictions, with one sentenced to death in another county. The perpetrator tried in Laramie was already serving a life sentence, and confessed to wielding the fire extinguisher. Experts said that if a jury wouldn’t impose death in that case, it would likely never happen here. He received an additional life sentence. Jurors refused to comment on whether the vote was close.

Rumors have swirled since Voigt’s Monday ruling that the last-minute torpedo to the heart of the defense strategy opens up fertile grounds for appeal. Two theories have been advanced: that McKinney was denied crucial evidence of his state of mind, and that the defense blunder amounts to incompetent counsel. Gallivan commented only on the former. “Judge Voigt is probably on very good ground on saying you’re not going to put that crap in,” he said.

Appeals in Wyoming advance directly to the state Supreme Court.

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

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 11
  • Close
  • Fullscreen
  • Thumbnails

    Ten spectacular graphic novels from 2014

    Beautiful Darkness by Fabien Vehlmann & Kerascoët
    Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

    Ten spectacular graphic novels from 2014

    Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
    Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

    Ten spectacular graphic novels from 2014

    Here by Richard McGuire
    A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

    Ten spectacular graphic novels from 2014

    Kill My Mother by Jules Feiffer
    The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

    Ten spectacular graphic novels from 2014

    The Motherless Oven by Rob Davis
    This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

    Ten spectacular graphic novels from 2014

    NOBROW 9: It's Oh So Quiet
    For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

    Ten spectacular graphic novels from 2014

    Over Easy by Mimi Pond
    When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

    Ten spectacular graphic novels from 2014

    The Shadow Hero by Gene Luen Yang and Sonny Liew
    You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

    Ten spectacular graphic novels from 2014

    Shoplifter by Michael Cho
    Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

    Ten spectacular graphic novels from 2014

    Through the Woods by Emily Carroll
    This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

  • Recent Slide Shows

Comments

0 Comments

Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>