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Pace Quickens in
Aaron McKinney's Trial for Murder

By Jeffrey Montgomery
The Triangle Foundation

Dispatch from Laramie, Wyoming—Wed., Oct 27, and Thurs., Oct. 28


shepmckinney2.jpg - 10.08 K The murder trial of Aaron McKinney in the beating death of Matthew Shepard is moving at a faster-than-expected pace. There is expectation that the prosecution's case may be completed tomorrow morning. That expectancy has only heightened speculation about how will be resolved one of the two big sidebar dramas playing out here in the Albany County Courthouse.

On Wednesday, Judge Barton Voigt told the defense team that their plan to use a blatant version of the so-called "homosexual panic" defense wasn't going to fly. Judge Voigt compared the strategy to Wyoming's "battered woman's defense," which is enshrined in a State Statute bearing the syndrome's name. It allows, as an element of self-defense, for an argument in cases where women are accused of killing their abusers.

Alas, there is no similar "Gay Panic" statute in Wyoming (or anywhere else in the country, for that matter). So the judge ---who was clearly chagrined by the introduction of the strategy--- ordered Dion Custis, captain of the defense team, to come up with a convincing legal justification for the scheme to have standing in this case. The judge's dressing down of the defense crew was stunning.

It has also provided the gallery observers with hours of speculation about what ramifications will result from the Judge's ruling, especially on the eve of defense's case.

As though this case needed any further turmoil, Russell Henderson, sentenced to life in prison for his confessed role in Shepard's killing (brokered last April in exchange for a life sentence and to avoid a possible death sentence), was a no-show today. His name appeared on the day's witness list and he had even been spotted in the courthouse, but he reportedly balked at the last moment.

Related Stories from the GayToday Archive:
Aaron McKinney's Struggle to Avoid the Death Penalty

Killer's Offensive Defense--Dispatches from Laramie

Matthew Shepard

Related Sites:
Triangle Foundation

National Gay & Lesbian Task Force

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Matter of fact, Henderson was seen in the courtroom during the mid-morning break. Then he went into the judge's chambers with McKinney and the defense lawyers. After that meeting, McKinney emerged smiling broadly and Henderson headed for the elevator. He was returned to jail for the afternoon.

Henderson had been expected as a witness for the prosecution and his anticipated testimony would have probably helped portray McKinney as the lead actor in the savage scene at the Fence and the sole actor who bashed Shepard's skull, before leaving the bashed and thrashed victim tied to the Fence.

With Henderson bolting the trial, he left behind a catalog of questions. Would he return another day? Is he now going to be a defense witness? Is his story changing, the story he touted at his sentencing hearing last spring? Will his testimony be entered into the record by using his previous, under oath statements? If he fails to participate completely, can the State revisit its offer of leniency and re-sentence him?

Between Judge Voigt's challenge to Mr. Custis, and the AWOL Russell Henderson, this epic episode has taken on yet even more extraordinary stuff.


Judge Barton Voigt's ex cathedra lecture last Tuesday, challenging Custis & Co. to justify their plan to mount a so-called "Homosexual [or Gay] Panic," brought that dubious scheme instantly into the national spotlight. It could have only happened here, at the trail of Matthew Shepard's killer, with bright national Klieg lights beaming up from Laramie.

schmitz2.gif - 9.80 K Many of the major print and broadcast news outlets that are covering the McKinney trial are developing stories about the "Gay Panic" defense and its effect, both historically and in recent trials. And suddenly everyone's talking about it. Triangle, as well as every other member agency of the National Coalition of Anti-Violence Programs (NCAVP) have tried to work this story at countless gay-killer trials for years. Our work, for example, to generate broad discussion of "GP" during the Schmitz murder trials in the death of Scott Amedure was only successful to a point. Of course during those cases we were elbowing for space in a tent crowded by Jenny Jones, celebrity shrinks, bombast lawyers and Grave's disease.

In the McKinney case, the Custis defense squad coupled with Matthew Shepard's status as the poster boy for heinous and wanton hate violence, have thrust the issue to the top of the charts. But just as no single victim, or his memory, should bear the burden of singularly standing for the issue, it is also morally flawed to raise Matthew Shepard up to such sainted status over those we know to suffer such violence every day.

Take Juan Pifarre.

Juan was the victim of another sickening murder in 1996, in San Francisco. By coincidence, the long awaited, much delayed trial of his killer concluded today, in the long shadow being cast from the goings on in Wyoming. Steven Nary, 22, was found guilty of 2nd-degree murder. The verdict was also a repudiation of "Gay Panic."

Nary had gone home with Pifarre after the two agreed to have sex, and that Nary would earn $40 for the effort. After accomplishing the act, Nary passed out. He awoke, he claimed, to find Pifarre ready for another round. Nary, a Navy man, proceeded to bludgeon the defenseless victim, who was more than twice the age of his crazed assailant. According to a report in LGNY, Nary's lawyer said, Nary "was protecting himself and resisting sodomy."

So much for hustler etiquette. Nary didn't even try to negotiate another $40.

According to my colleague, Jennifer Rakowski, of Community United Against Violence (CUAV), San Francisco's glbt anti-violence project and NCAVP member agency, this incident spawned an outfit called the Steven Nary Legal Defense Fund, which rose to the occasion by mounting an aggressive campaign that disparaged Juan Pifarre in the extreme, and with reckless disregard for truth. In the process the group became the unofficial PR firm for the "Gay Panic" defense. Nary's supporters were also racist.

According to Rakowski, "Inside the courtroom the defense council operated under a thinly veiled homosexual advance defense ["Gay Panic"]. Outside the courtroom, the bigotry of Steven Nary's supporters was more blatant. Self appointed friends of Nary's postered the neighborhood around the Hall of Justice with flyers showing Nary in military uniform and claiming that city officials are concealing the truth of how the gay community seduces military recruits. Juan Pifarre, an Argentinean immigrant and long-term resident of San Francisco, was repeatedly referred to as an 'illegal alien, sexual predator.'"

So against all odds, the 2nd-degree jury verdict for Nary is really a heartening victory, especially during this week when the bogus concept of "Gay Panic" is being tested again in Laramie, at the most visible anti-gay murder trial since Dan White got away with the murder of Harvey Milk by admitting to being a Twinkie junkie.

Thursday, October 28

There was activity inside the courtroom Thursday. The girlfriends/co-conspirators of McKinney and Henderson testified to their respective roles in the cover-up of Shepard's murder. One is serving time for destroying evidence. The other faces her own trial next January. And a tape recording of Aaron McKinney's meandering confession to Shepard's murder was played for the jury. So ended Day Four of the State of Wyoming v. McKinney.

The tape's revelations? That's another story.
Jeffrey Montgomery has been able to observe and comment on this case in Laramie through the generous support of the Triangle Foundation and its supporters; The National Coalition of Anti-Violence Programs; Gay & Lesbian Alliance Against Defamation; and the National Gay & Lesbian Task Force.

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