McKinney guilty in Shepard murder

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.

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