"A question of why"

Hate crime? Gay panic? Aaron McKinney's lawyer isn't arguing about who killed Matthew Shepard. But the question of what motivated the crime is a matter of life and death.

Published October 25, 1999 9:00AM (EDT)

A majority-male jury was seated in the second Matthew Shepard murder trial Monday morning, increasing the likelihood that suspect Aaron McKinney could receive a death sentence.

Lawyers for both sides indicated during jury selection that there would be little dissent over what happened to Shephard, but a very big debate over why.

McKinney is charged with first-degree murder, aggravated robbery and kidnapping in the Oct. 7, 1998 bludgeoning of the 21-year-old gay college student. Shepard was found tied to a fence in Laramie, Wyo., and died five days later of wounds to his face and head. The case has captured international attention and has become a focus for campaigns against anti-gay violence. Russell Henderson, the first defendant to be tried in the case, pled guilty to felony kidnapping and murder, and has begun serving two life sentences.

As McKinney's trial got underway, chances faded for a repeat of Henderson's 11th-hour plea bargain announced April 5, the day opening arguments had been set to begin in that trial.

The jury selection is significant because men are historically more likely than women to impose the death penalty. In the final round of pre-trial jockeying, lawyers got their first chance to remove potential jurors without cause. They whittled down the roughly gender-balanced pool of 48 to 10 men and six women, including three university students. The court has not yet disclosed who will be jurors and who will be alternates.

Opening statements are set to begin Monday afternoon. Both sides could finish that process before the 5 p.m. recess. However, the defense statement may be delayed by an usual procedure ordered by Judge Barton Voight. He will open the trial with instructions to the jury, detailing the complex legal alternatives to the death penalty. This explanation usually occurs just before jury deliberations.

The facts of Matthew Shepard's death are undisputed. The mystery is what motivated McKinney and Henderson to kidnap and attack Shepard. Trial watchers are anxious to hear the strategies that prosecution and defense will use to explain the motives of the crime; the outcome of that explanation is a matter or life or death for McKinney.

After a year of giving mixed signals, prosecutor Cal Reruca will finally present the state's version of McKinney's motivations this afternoon. Analysts expect him to argue that the attack was motivated by anything from a premeditated hate crime to a "robbery gone bad."

Public defender Dion Custis conceded during jury selection that he would admit that McKinney beat Shepard to death, but said he will argue that methamphetamines, alcohol and mental-health problems clouded his judgment. "What you have to decide in this case is basically a question of why," he said.

Custis also indicated that he will attempt the so-called "diminished capacity" defense to achieve a lesser verdict of second-degree murder or manslaughter, which would spare McKinney's life. "Whether or not you feel alcohol or drugs may not be an excuse -- and we will not offer that as an excuse -- it may have an effect, may have a part in what happens in any situation," he told potential jurors.

But diminished capacity is a tricky defense, because of Wyoming's felony-murder law. McKinney could be sentenced to death without having intended to kill Shepard if the prosecution proves that the death ensued from the commission of a felony such as kidnapping or even robbery.

In his April 5 plea-bargain testimony, co-defendant Russell Henderson told the widely reported story that the pair made off with $20 and a pair of shoes. Henderson is expected to be called as a prosecution witness, and also appears on the defense list.

McKinney's girlfriend, Kristen Price, has also been quoted as saying the attack was intended as a robbery, rather than a hate crime. Both girlfriends have been named as potential witnesses by prosecutors and are expected to testify.

Less certain is whether the "gay panic" defense will be used. It was not mentioned during jury selection. Opinion among local analysts remains divided whether Custis will attempt to use a panicked response to Shepard's homosexuality as a contributing factor. Most agree that he will probably hold back on the potentially inflammatory tactic until and unless progress of the trial warrants it.

As well as offending some jurors, the gay panic defense could be undermined by McKinney's own statements. In a bizarre move last June, McKinney called a local radio station from the jail to argue that the murder was not a hate crime. "People are saying just because [Shepard] was gay that this is a hate crime, that I targeted him because he was gay," he said. "I don't have anything against anybody. I don't hate gay people. I have a good friend that's gay." That premature attempt to deny premeditation could undermine his lawyers' ability to argue gay panic.

Equally uncertain was whether Reruca would use incriminating letters he released last April which he contends were written by McKinney in jail. McKinney's lawyers deny he is the author.

Judge Voight indicated Monday that the entire trial, including the penalty phase, would be over within three to four weeks.

By Dave Cullen

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

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