Quiet bombshell in Matthew Shepard trial

McKinney's primary hope to escape a first-degree murder conviction now rests on the intoxication defense, considered a long-shot by legal analysts. And his faint hope for that defense was probably undermined by the gay panic strategy thrown out Monday.

The voluntary intoxication defense is rarely successful, legal analysts advised Salon News, because the threshold to achieve it is extraordinarily high. Defense attorneys must convince the jury McKinney was so intoxicated that his mind was incapable of forming intentions -- legally "specific intent" -- and then pursuing them.

Legal analysts also say that McKinney's lawyers probably destroyed any shot at the intoxication defense by pursuing gay panic, which unequivocally demonstrates McKinney's ability to formulate mental reactions.

During Friday's hearing, Judge Voigt seemed to agree. "You are in effect proving that Aaron McKinney had a motive to kill Matthew Shepard," he told the defense team. "How does it become anything other than a motive to kill?"

Given Monday's ruling, McKinney's only other significant hope rests on a strategy downplayed during the opening statement: lack of premeditation, which is a separate legal concept from the manslaughter argument involving the "heat of passion." The defense has always contended that the beating occurred spontaneously, with McKinney's confused sexual history the chief rationale. They attempted to demonstrate that point during cross examination of prosecution witnesses last week, but did not present witnesses of their own to reinforce that defense.

McKinney laid the groundwork for the unpremeditated defense in his confession taped two and a half days after the beating, Oct 9, 1998. "I think I killed someone, and I don't know why," he said on the tape played publicly Thursday for the first time. "It's like I was possessed or something ... I blacked out ... lost control."

But the tape was played by the prosecution, because it seriously undermines much of the defense strategy. Late in the hour-long interview, McKinney acknowledges hitting Shepard twice with the .357 magnum in the truck, several minutes before the main beating at the fence. But most damning is the final question he poses before finishing Shepard off. He describes his concern that Shepard might recognize him.

"I was trying to lie like I had California plates," he says, but doubts Shepard's buying it. So he asks Shepard if he can make them out. "He read my license plate and that's why I hit him a few more times." At that point, Shepard passed out, chunks of his skull crushed down into his brain cavity.

Two days earlier, spectators audibly gasped at the first sight of the weapon that inflicted such damage. The beating has routinely been described as a "pistol whipping," but the foot-long revolver Rerucha raised in a glass case was a far cry from the handgun that phrase conjures. It's actually an old-fashioned Smith and Wesson right out of a John Wayne movie, with a 10-inch barrel McKinney used for staggering swings, he explained in the confession.

Just hours before the confession was finally played, Kristen Price, McKinney's then-girlfriend and mother of his child, testified that he arrived home several minutes after the attack and announced, "He thought he killed a some guy." He turned off all the lights, ran to the bathroom to wash the blood off Shepard's two driver's licenses, she said.

Throughout the confession, McKinney maintained that he only intended to give Shepard a ride home, suspecting, but never sure that he was gay. "I kinda thought he might be a faggot, but all he ever did was ask for a ride home."

However, Price testified that McKinney told her a different story shortly after the attack, while the two killers and their girlfriends scrambled to destroy the evidence and get their stories straight.

"He and Russ went to the bathroom [at the Fireside Lounge] and pretended they were gay to get [Shepard] in the truck and rob him," she said. Aside from the doubt that casts on McKinney's alleged panic, premeditation of the robbery would be enough to end his life, if the jury buys Price's testimony. According to Wyoming law, premeditation of either the aggravated robbery or the kidnapping would lead to a capital "felony murder" conviction, regardless of whether McKinney actually intended to kill Shepard.

The defense tried to undermine Price's testimony by suggesting she was lying to obtain a reduced sentence in her own trial next January, for her role in the killing as accessory after the fact. She could receive up to three years in prison.

The major wild card remaining after the decision revolved around the mysterious non-testimony of Russell Henderson, the only other living person who really knows what happened that night. Henderson was named as a key witness for the prosecution, and was scheduled to testify last Thursday. He was transported 100 miles from the state penitentiary in Rawlins, and actually sat down in the witness chair and smiled at reporters during a recess immediately before his scheduled appearance.

But after a lengthy closed-door hearing, he was inexplicably pulled from the witness list and the prosecution rested its case Friday morning without calling him. Speculation was rampant that he might testify for the defense, but that never happened.

In his plea bargained case last April, Henderson testified that McKinney struck all the blows, but he was never asked about motives or the role of Shepard's sexuality. Homosexuality was never mentioned during the abbreviated trial and sentencing, which left Henderson serving two consecutive life sentences without possibility of parole. Plea bargains in such cases typically impose a requirement of testimony against the co-defendant.

McKinney's confession confirmed that he never saw Henderson strike a blow, but that Henderson enjoyed much of the beating and insisted they leave Shepard out there. "[Henderson] was laughing at first," McKinney said. "Then it became more serious."

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