'Gay Panic' Ruling No Surprise

It's no surprise that a Wyoming judge threw out Aaron McKinney's "gay panic" strategy. Wyoming's statutes don't recognize any such defense, and this particular judge wasn't about to give this particular defendant a break by making new law in this fashion.

The ruling is a crushing blow to McKinney's chances of gaining an acquittal on charges that he murdered Mathew Shepard last October in Laramie. And it means a trial that originally was supposed to take a month might be over in about a week.

Shepard, remember, was the slight, slender, frail gay University of Wyoming student who was brutally beaten by McKinney and a sidekick and left to die on a cold, windy Wyoming field.

During opening statements last week, prosecutors last week portrayed McKinney as an inhuman predator who continued his assault even while Shepard's begged for his own life. And they backed up this preview with devastating evidence against McKinney - the jury saw physical and scientific evidence linking McKinney to the crime and heard McKinney's jailhouse confession.

During opening statements of their own last week, and faced with this juggernaut prosecution case, McKinney's attorneys conceded that their client had, indeed, savagely attacked Shepard but said that he had done so in an uncontrollable rage brought on by a past history of homosexual abuse.

According to defense attorneys, McKinney had been sexually abused as a child by a neighborhood bully and had experienced several other homosexual encounters that had left him particularly sensitive to homosexual advances.

When Shepard made a pass at McKinney, the defense told jurors, McKinney simply snapped, lost his mind and attacked Shepard. The idea behind this defense strategy was to attack the government's case at its weakest point - intent and premeditation.

If, as the defense argued, McKinney didn't plan to hurt Shepard but was simply reacting involuntarily, then perhaps the jury would convict McKinney on second-degree murder or even manslaughter charges. And that's precisely what McKinney's lawyers argued during opening statements.

Now, "gay panic" defenses have been raised before in this country, with varying degrees of success. But not in Wyoming. Which brings us to Judge Barton Vogt, the man presiding over the McKinney trial.

After mulling over the notion of a gay panic defense, he's apparently decided that there simply isn't a basis for it in law or fact. He's compared it to "temporary insanity" or "diminished capacity" defenses, neither of which is permitted in Wyoming.

In essence, he's ruled that no matter how differently McKinney's lawyers wrap up their theory in new paper, it's just the same old theory that Wyoming courts have rejected before.

The timing of the ruling makes a bit of a mess of the trial. Vogt should have picked up on this theory during jury selection, when McKinney's lawyers initially raised the possibility oa gay panic defense. And the judge certainly should have said something during opening statements, when Team McKinney made clear what they had in mind during the trial.

Instead, he waited until almost the end of the government's case before expressing doubts about the defense. By allowing jurors to hear the theory but preventing them from hearing evidence about the theory, the judge may have given McKinney's lawyers the best appeal angle they are likely to have in this case.

And McKinney is likely going to need some help on appeal. Vogt's rejection of the gay panic strategy simply tears apart whatever defense case there was to begin with. So much so, in fact, that a defense that was supposed to take two weeks likely will be completed in two or three days.

And a few days isn't much time to convince jurors, in the face of almost overwhelming government evidence, that the man on trial for a horrible murder ought not be convicted of that murder.


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  • CBSNews.com staff CBSNews.com staff

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