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.

Published November 3, 1999 6:00PM (EST)

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.

By Dave Cullen

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

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