They're praising his questioning of the defense strategy in the case. The judge says he's not sure a so-called "gay panic" defense is allowed under Wyoming law. He has also criticized lawyers for Aaron McKinney for invoking it without consulting him first.
The "gay panic" or "homosexual panic" defense is built on a theory that a person with latent homosexual tendencies will have an uncontrollable, violent reaction when propositioned by a homosexual.
Dion Custis -- one of McKinney's lawyers -- denies he's using a gay panic defense. But he says a sexual advance from Shepard is relevant in the case.
McKinney is charged with first-degree murder, kidnapping and aggravated robbery in the killing of Shepard.
During the fourth day of testimony Thursday, Chasity Pasley -- who was dating McKinney's alleged accomplice, Russell Henderson -- said McKinney told his girlfriend he killed someone and then asked his friends to help cover up the crime.
Henderson pleaded guilty to kidnapping and felony murder in April and received two life sentences.
Pasley testified that Henderson and McKinney got together -- as she put it -- "so they could get their story straight."
Defense attorneys objected to part of her testimony, calling it "hearsay." The judge agreed.
If convicted, McKinney could be sentenced to death.
McKinney's lawyers have argued that McKinney snapped during a drunken, drug-induced rage after a sexual advance by Shepard triggered memories of a childhood homosexual assault. The lawyers are trying to save McKinney's life by convincing the jury he is guilty only of manslaughter.
District Judge Barton Voigt said the closest defense he could find in Wyoming law is the "battered woman" defense, for those who kill a spouse in self-defense.
Custis has said, "The fact that Matthew Shepard made a sexual advance has a relevance in this case. It's something Aaron McKinney responded to." He added that Shepard's behavior helps explain McKinney's state of mind, "which is a defense."
The judge ordered Custis to provide a legal basis for his arguments and said he would make a decision later.
Gay rights activists praised the judge, saying it is wrong to try to blame Shepard for McKinney's actions.
"The only person at risk here was Matthew Shepard," said Wayne Besem, spokesman for the Human Rights Campaign, a gay lobbying group in Washington. "If Aaron McKinney felt threatened, all he had to do was walk away."
Although no state has adopted a gay panic defense, it has been used by defense attorneys in some cases involving gay victims.
Experts warned that employing the defense is perilous since it can amount to blaming the victim. Brian Levin, director of the California-based Center on Hate anExtremism, also said the strategy hasn't worked recently because Americans have become more tolerant of homosexuals.
"I feel we've turned a very big corner in that nearly everyone agrees that violence against them is completely wrong," he said. "I don't think you had the same type of atmosphere 20 or 30 years ago."
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