THE MATTHEW SHEPARD SLAYING
				Discuss the case Nov. 19 1998 Update Dec. 11, 1998 Update Russell Henderson's Guilty Plea and Sentencing June 25 Update Oct. 8 1999 Update (Background Report) Oct. 11 (Jury Selection) Oct. 14 Update Oct. 22 Update Oct. 25 Update (Opening Statements) Oct. 26 Update Oct. 27 Update Oct. 28 Update (Morning) Oct. 28 Update (Afternoon) Oct. 29 Update (Morning) Oct. 29 Update (Afternoon) Nov. 1 Update (Morning) Nov. 1 Update (Evening) Nov. 2 Update (Closing Arguments) Nov. 3 Update (Jury Deliberations) Nov. 3 (The Verdict) "Gay Panic" Ruling

LARAMIE, Wyo. (Court TV) — Noting that state law does not address the so-called "gay panic" defense, the presiding judge in Matthew Shepard murder trial suggested Wednesday that he may bar Aaron McKinney's lawyers from presenting that theory to jurors.

McKinney's lawyers are trying to convince Wyoming jurors that he did not intend to kill Shepard when he beat him to death last October. According to the defense, McKinney went into a blind rage after Shepard, a gay student, allegedly made an unwanted pass at him. The defense argued that this rage — and McKinney's fatal beating of Shepard — was spurred partly by the defendant's own prior homosexual experience and aggravated by drug and alcohol abuse. The defense told jurors Monday that McKinney was sexually abused by a male neighborhood bully when he was 7 years old and had a "confusing" experience at age 15 with one of his cousins. During this fit of rage, McKinney apparently "blacked out" for five minutes and does not remember much of what happened.

But on Wednesday, Judge Barton Voigt told defense attorney Dion Custis outside the presence of the jury that he found no provisions in state law that allow him to present a gay panic defense. Judge Voigt said that unless McKinney's lawyers find a state law that would allow this strategy, he would bar the defense from presenting evidence about the gay panic theory.

"I am concerned about this and where it is going," Judge Voigt said. "You never mentioned it before and here we are ... We do not have a gay panic defense [in Wyoming]. I don't know if I'm going to allow it."

Custis argued that he is not employing a gay panic defense — only the media thinks that he is using that strategy. Evidence about McKinney's prior homosexual experience, Custis argued, should be admitted because it attempts to prove his state of mind when he reacted violently to Shepard's alleged sexual advance.

"The fact that Matthew Shepard made a sexual advance has relevance in this case," Custis said. "It's something Aaron McKinney responded to."

In addition, Custis stressed that the prosecution opened the door for his proposed defense by seeking a conviction of first-degree premeditated murder with malice. In response, the defense would use McKinney's blind rage and alleged past traumatic homosexual experience to try to disprove allegations that the killing was premeditated.

Custis's strategy is designed to save McKinney from a first-degree murder conviction's possible death penalty and to perhaps gain a manslaughter verdict. In opening statements, Custis stressed that McKinney is guilty of manslaughter, not murder, in Shepard's death.

Whether Custis is allowed to present the so-called gay panic defense or not, he may have difficulty countering prosecutors' allegations that the murder was premeditated and that robbery was the motive. A lead investigator testified Wednesday that he found Shepard's wallet in McKinney's home in a diaper.

In addition, prosecutor Cal Rerucha said in his openings that during the beating, McKinney asked Shepard if he could see the license plate on his truck. When Shepard replied yes, the prosecutor told jurors, McKinney proceeded to strike him viciously several times — an attack that led to his death.

Wyoming prosecutors say McKinney was the mastermind behind Shepard's brutal slaying. McKinney, along with cohort and former friend Russell Henderson met Shepard at a bar, allegedly pretended to be gay and lured Shepard into the pickup truck that McKinney was driving. There, Shepard was pistol-whipped, beaten, robbed, tied to a fence and left to die in freezing temperatures.

Shepard was found 18 hours later and taken to the hospital. He died five days after being admitted.

— Bryan Robinson