Overruled

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

By Dave Cullen

Oct 28, 1999 | 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."

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