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) — After nearly a week of expressing doubts, the presiding judge in the Matthew Shepard murder trial Monday barred Aaron McKinney's lawyers from using the so-called "gay panic" defense.

In a written statement, Judge Barton Voigt told McKinney's lawyers that their proposed strategy was a form of a temporary insanity or diminished capacity defense, neither of which are allowed by Wyoming law.

"The defense is, in effect, either a temporary insanity defense or a diminished capacity defense, such as irresistible impulse, which are not allowed in Wyoming, because they do not fit within the statutory insanity defense construct," Judge Voigt said in his ruling. "There is no evidence that would make the evidence relevant."

The judge's ruling is a major setback for McKinney's lawyers, who now have to scramble to find a way to avoid a first-degree murder conviction against their client.

Prosecutors say McKinney and one-time co-defendant Russell Henderson pretended to be gay and lured Shepard into McKinney's truck where they intended to rob him. Shepard was pistol-whipped and beaten brutally and later tied to a fence. He was found 18 hours later and died in a hospital after five days in a coma.

McKinney admits beating Shepard while Henderson watched. But the defense says McKinney is guilty of manslaughter, not murder. McKinney, his lawyers claim, went into a blind rage after Shepard allegedly made an unwanted pass at him. The defense argued in opening statements 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 has argued 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.

But Judge Voigt has torpedoed that defense theory and remained unconvinced that McKinney's lawyers found a legal basis or relevance for their arguments. McKinney's lawyers insisted that they are not employing a so-called "gay panic defense." They have argued that McKinney's prior homosexual experience and abuse would help explain why he reacted the way he did to Shepard's alleged advance and would give insight into his state of mind. On Friday, McKinney's lawyers said they would present fact lay witnesses to advance their defense theory and not the expert witnesses they had previously proposed. But now, those fact witnesses may not be allowed to testify.

"Defense counsel have tried valiantly to convince the Court that their defense is not a homosexual rage defense," Judge Voigt wrote in his decision letter. "But what they hope to do is to present testimony that, because of homosexual experiences in the Defendant's past, he flew into a rage and killed Matthew Shepard, without specific intent to kill, but voluntarily in a sudden heat of passion. This is the homosexual rage defense, nothing more, nothing less. The fact that the Defendant attempts to raise it through lay witnesses, rather than through experts, is inconsequential."

Still, Judge Voigt said, evidence about McKinney's alleged homosexual rage may become relevant is the sentencing phase of his trial.

In his police confession, McKinney said that he and Henderson never planned to kill Shepard. The beating, McKinney said in his confession, started when Shepard made an unwanted sexual pass at him.

"I hit him [Shepard] ... and he kept throwing himself all over me," McKinney said in the taped police statement. "We had really no intention of hurting this guy. It was to take him out and scare him and take his wallet and leave."

If convicted of first-degree murder, McKinney could face the death penalty. Henderson pleaded guilty to felony murder in April and was sentenced to two consecutive life terms.

— Bryan Robinson