His lawyers already have said during jury selection that McKinney played a role in the fatal beating of the gay college student last October.

But with opening statements to begin Monday in McKinney's murder trial, those lawyers will try to keep him off death row by convincing jurors he never intended or planned to kill Shepard.

The killing drew enormous attention and became an emblem for many gay rights advocates of the need to add sexual orientation to anti-discrimination laws.

Defense lawyer Dion Custis has said the death was not a hate crime. He told prospective jurors that drugs and alcohol spurred McKinney's actions, and his client's use of those substances would be a core part of his defense.

``What you have to decide in this case is basically a question of why,'' he said during jury selection.

The 22-year-old laborer is charged with first-degree murder, aggravated robbery and kidnapping in the Oct. 7, 1998, beating. McKinney faces the death penalty if convicted.

Prosecutors say McKinney and Russell Henderson, 22, met Shepard in a bar and convinced him to leave with them. They say the pair drove Shepard to a remote area east of Laramie, tied him to the fence, robbed him of $20 and beat him into a coma. Shepard, 21, died five days later.

Henderson pleaded guilty in April to felony murder and kidnapping and received two life sentences.

Defense attorneys and prosecutors have declined comment, citing a judge's gag order.

Custis has said in court proceedings that he will try to persuade the jury to convict his client of the lesser offense of second-degree murder or manslaughter, which do not carry a possible death sentence.

He must also try to prove Shepard's death did not result from a kidnapping or robbery because Wyoming subscribes to the felony-murder rule. That law allows a defendant to be convicted of murder for a death that results from the commission of a felony, even if the death is unintentional.

In other words, even if McKinney avoids conviction on the individual first-degree murder charge, he could still face the death penalty if the jury finds Shepard died as a result of a robbery or kidnapping.

``There was no intent or premeditation to affect the death of Matthew Shepard and also this did not occur during perpetration of a robbery, also known as felony murder,'' Custis told prospective jurors two weeks ago.

Although Custis has said the case is not a hate crime, some analysts speculate the defense may argue that McKinney reacted angrily to an advance by Shepard, a so-called ``gay panic'' strategy.

The problem is for the defense to avoid the implication that the beating was a hate crime, said Andrew Cohen, a Denver legal analyst.

``I guess there's some fine line there where you could say, `I don't hate gays. I didn't intend to harm a gay person. When the gay person touched me, I lost my senses and under the influence of drugs attacked a gay person,''' he said.

Although the gay panic strategy has been used successfully before, fewer juries are accepting it these days, said Jeffrey Montgomery of the National Coalition of Anti-Violence Programs.

``There was a time when it was a virtual guarantee to get an acquittal, but in recent years it's been much more difficult,'' he said. ``Juries are not as influenced by it, but it's also because prosecutors are much more better prepared and able to counter it.''

Cheyenne prosecutor Jon Forwood, who is not involved in the case, predicted Custis will keep the strategy in his pocket unless it's necessary.

``A lot depends on how the evidence evolves,'' he said. ``What statements did McKinney make to law enforcement earlier? What statements did Henderson make? What statements did they make to their girlfriends that they related back to law enforcement?''