The defense scrambles as the judge in the Matthew Shepard trial attacks the so-called "gay panic" defense.

Published October 28, 1999 4:00PM (EDT)

Judge Barton Voight angrily rebuked Aaron McKinney's attorneys Wednesday morning, threatening to throw out the "gay panic" strategy central to their defense in the Matthew Shepard murder trial.

"Gay panic" refers to 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.

"We are not putting on a gay panic defense!" public defender Dion Custis responded, equally enraged. "The only place that comes from is these people," he said, gesturing angrily toward the press.

Technically, Custis was correct. His assisting attorney Jason Tangeman never used the phrase during his opening statement Monday afternoon. But Voight's concern rested on the lack of statutory support for the defense presented by McKinney's attorneys.

The jury was not present for the 15-minute exchange, which erupted in open court.

McKinney, 22, 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. 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.

Monday afternoon, Tangeman laid out the basis of their plea for a reduced conviction of manslaughter: Shepard provoked the "savage" attack with a humiliating sexual advance that sent McKinney into "five minutes of emotional rage and chaos." In a stunning twist, Tangeman then unveiled McKinney's history of homosexual experiences, including forced oral sex at the age of 7, and consensual gay sex at 15. He argued that alcohol and methamphetamines further fueled McKinney's rage, but his "sexually confusing" history forged the primary catalyst.

Voight appeared unfazed Monday, but revealed two days later that he was just as shocked as the rest of the courtroom. "This comes as a surprise to me," he said Wednesday morning. "I learned in voir dire that your chief defense was to be voluntary intoxication," he said, complaining bitterly that the defense should have briefed him in advance and cleared their strategy during the months of pretrial negotiating. "The problem is that you're asking us to do this in the middle of the trail."

Voight said he had researched the defense and found no basis for it under Wyoming law. "I'm having a problem with the relevance of the gay panic defense," he said. "I'm very concerned about where this case is going, and I may not allow it."

Wyoming has no general "diminished capacity" statute to mitigate McKinney's actions, only specific statutes applied to very narrow situations, Voight said. He cited the self-induced intoxication, and "battered woman syndrome" as examples of factors which could lead to a lesser verdict. "But we don't have a statute [applicable here]," he said.

He then laid out an historical context for the battered woman syndrome defense, which could reframe the emerging national debate on the gay panic defense. Initially, society turned a blind eye to the plight of women trapped in abusive marriages, but gradually came to accept the threat of repeated bodily harm as a legitimate rationale for self-defense in extreme cases. In February 1993, the Wyoming legislature passed a statute stipulating the specific circumstances where that defense was applicable. Wyoming has made no such legal or social determination concerning humiliation from a gay advance or confused sexual history, he said, so the defense has no legal standing to argue for a manslaughter conviction on that basis.

He also said the battered woman statute depended on an objective test of how a reasonable, normal person would react to a given situation, rather than this particular defendant.

In fact, the battered woman syndrome statute repeatedly invoked by Voight as the closest legal basis for the gay panic defense, is far more restrictive than even he acknowledged. It categorically states that it "does not create a separate defense," but merely permits expert testimony on the syndrome to support a finding of self-defense, "to establish the necessary requisite belief of an imminent danger of death or great bodily harm."

"It goes to his state of mind," Custis argued. "The fact is Matthew Shepard made an advance. It's something Aaron McKinney responded to. The emotional aspect and state of mind is the defense, as it pertains to premeditated murder."

Voight said he would accept the defense only if McKinney's team could come up with a statute on which to base it. "I have the research," Custis promised. Outside the courthouse, Custis refused to comment on how or when he would defend his strategy, but said he didn't expect the argument to play out in open court.

No announcement was made on a hearing date to resolve the dispute, but it is almost certain to occur prior to the defense case, likely to begin early next week. Voight allowed the prosecution to proceed with its case, but warned the defense against compounding the problem.

Voight did not comment on how he would resolve the jury tainting, should he ultimately strike the gay defense. Mistrials are rarely requested by the prosecution, so the most likely outcome would be an instruction that the jury disregard the information. One legal analyst cautioned that Voight would have to be very careful in his jury instructions to discredit the relevance of the information, without prejudicing them against the defense lawyers.

One prosecutor not involved in the case questioned why lead prosecutor Cal Rerucha never objected to Tangeman's opening statement, leading to the extremely rare objection from the bench that was made Wednesday. "He supplied a motive here for a case that may be difficult to explain," the prosecutor said.

Wednesday's twist was the latest in a trial which has already had its share of surprises. Even before the trial began, local police went out on a limb and acknowledged that the crime was probably hate-motivated. It seemed somewhat implausible to suggest Shepard was beaten so brutally for the $20 and a pair of shoes the "thieves" made off with. But when the state finally began presenting its case just over a year later, Rerucha seemed to suggest exactly that.

Meanwhile, after a year of vehemently insisting that this was not a hate crime -- with McKinney actually calling into a local radio station from jail to make that argument personally last June -- the defense team reversed that position 180 degrees Monday, arguing that disgust for homosexuals was exactly the motive for the brutal attack.

By Dave Cullen

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

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