Select Page

Content warning: This week’s episode references a lot of murders and crimes against the person.  A lot a lot. If that would bring you down, this would be an ideal time to go back into the vault for a second listening of an old favorite episode. On 27 November 1978, Dan White, a former San Francisco city supervisor who had recently resigned his position, entered San Francisco’s city hall by climbing through a basement window and then shot and killed both mayor George Moscone and supervisor Harvey Milk. At his trial, White’s attorneys claimed that White’s had diminished mental capacity from eating excesses of sugary junk foods.  Their strategy would become known in the law and pop culture as The Twinkie Defense and it’s only one of many brilliantly bizarre legal strategies people have tried and sometimes even succeeded with. My name’s…   This phrase Twinkie Defense came to represent the efforts of criminals to avoid responsibility for their actions by claiming that some external force beyond their control had caused them to act the way they had.  The most important thing to know about the Twinkie Defense is, that’s not really how it happened. Yep, one minute in and we’re already busting myths or as I like to call it ‘disabusing [].’ “I don’t think Twinkies were ever mentioned in testimony,” said chief defense attorney Douglas Schmidt, who recalls “HoHos and Ding Dongs,” but no Twinkies . In fact, the cream-filled, nuclear-war-resistant confections were only mentioned in passing.  Junk food was an insignificant part of the defense, a passing mention by one of five defense therapists, psychiatrist Martin Blinder.   The main focus of the defense’s case in May 1979 was diminished capacity — that White had suffered from periodic bouts of depression, amounting to “a major mental illness.”  That, along with “the machinations of dirty politics at City Hall,” White’s co-counsel Stephen Scherr said in an interview, “drove him ’round the bend.” During his day on the stand, Dr. Blinder, a former mayor of San Anselmo and a onetime teacher at UCSF’s medical school and at Hastings College of the Law, characterized White as his family’s black sheep, a man with rigid values and pent-up emotions.  In his daylong accounting on the stand of how White’s life “unraveled,” one small aspect of something Blinder said was turned into the irrational explanation for everything that came after. “Studies show,” he said recently, “that if you have a general predisposition to bipolar mood swings, things you ingest can play a part.” In the days leading up to the killings, the psychiatrist told the jury, White cast aside his normal habits and grew slovenly, quit working, shunned his wife, gave up personal hygiene and rather than eat his healthful diet, indulged in Twinkies and Coke — all symptoms, Blinder testified, of *depression.  The junk food, he said, only made White more depressed, which caused him to binge even more. Even without depression, I understand that cycle. Today, a still-angry Blinder says, “It’s preposterous to think that 12 middle class homeowner jurors would give a killer even a partial pass on the basis of what he ate the night before.” White was convicted of the lesser charge of voluntary manslaughter and sentenced to nine years in prison, of which he only served a little over five. Blinder rightly blames the press for perpetuating the myth. “If I found a cure for cancer,” he said, “they’d still say I was the guy who invented ‘The Twinkie defense.’ “   This wasn’t the only found unhealthy food found itself in the spotlight.  In 1984, a San Diego man named James Huberty called a mental health clinic for an appointment.  When they didn’t call him back that day, he told his wife “society had its chance” and the next day told her he was “going hunting…hunting humans.”  Armed with a pistol, shotgun, Uzi, and hundreds of rounds of ammo for each, he entered a busy McDonald’s and immediately began shooting, killing 21 people and injured 19 others before being fatally shot by police.  When the smoke cleared, both literally and metaphorically, Huberty’s widow sued McDonald’s and Babcock & Wilcox, her husband’s longtime former employer, in an Ohio state court for $5 million. The suit claimed that the massacre was triggered by both a poor diet, and her husband working around highly poisonous metals, further citing that monosodium glutamate in McDonald’s food, combined with the high levels of lead and cadmium discovered in Huberty’s body at his autopsy, most likely built up from fumes inhaled during his 14 years of welding at Babcock & Wilcox, had induced delusions and uncontrollable rage.  She was unsuccessful, thus shutting down the posthumous MSG defense.   And no, Grandma, Chinese food doesn’t give you a headache because it has MSG in it.  MSG is a natural substance found in foods like mushrooms and parmesan cheese, and those never bothered you.  Also, that claim was popularized by two unscientific racists, so there’s that. She’s not even alive anymore and I’m still annoyed that she said that.   Then there was the case of Kenneth Sands, who in 2011 claimed that caffeine led him to molest five women and girls.  In one outing. He attempted to argue in court that caffeine “caused a psychotic episode,” explaining “My son-in-law and daughter have never seen that kind of behavior from myself.”  “That kind of behavior” took place after a high school volley, where he groped multiple people and even got onto the players’ bus and groped one more person before kicked off. The court ruled that caffeine was not, in fact, the reason behind Sands’ aggressive and lewd behavior and sentenced him to 30 days for each of the five counts of fourth-degree assault.   A life of poor eating was one man’s defense against a murder charge.  He claimed he was too fat to kill. The lawyer for a Florida man, and don’t our ears perk up when we hear that phrase, who stood 5’8”/172cm and weighing 285lb/130 kg, claimed his client was in such bad physical shape that he couldn’t have pulled off the shooting or the fast getaway, which included running up stairs.  Lesnevich said his client’s weight has led to asthma, sleep apnea and other obesity-related ailments. “You look [him] and you don’t need to hear it from a doctor,” Lesnevich said. Thanks, I guess? The juror convicted him of murder and weapons charges. The name of the man supposedly too fat to have done it? Edward Ates.   On the subject of bodily girth as a defense, a Japanese bikini model-turned-actress was acquitted of trespass charges because a re-creation of the crime showed she couldn’t possibly have fit through a hole because of her ample bust.  Serena Kozakura had been sentenced to 14 months in prison for willful destruction of property allegedly kicking a hole the door and re-entered her boyfriend’s apartment following an argument with another woman she had discovered there.  During the appeal hearing before the Tokyo High Court, the man and another witness both testified that Kozakura had kicked a hole in the door and then squeezed through to re-enter the apartment. But the hole in the door measured 28.3 inches by 8.7 inches or 72cm x 22cm.  Ms. Kozakura’s famous bust measures 40 inch or 101cm. The judge agreed she would not have fit through the hole as her ex described.   I’m not to say that things that are supposed to be good for you escape the judicial retical.  Cough syrups and cold medicines have been the would-be fall guys for a number of cases. An aspiring pastor in North Carolina claimed that he woke up to find his wife covered in blood on the floor but couldn’t remember what happened that night.  Although Phelps believes that he attacked his wife, he claims that the cough medicine he took to help him sleep caused him to black out. At some point, he backed off that strategy and pled guilty. In 2011, a doctor was accused of murdering his partner and their young son. His defense: cough-syrup induced psychosis.  His attorneys argued that at the time of the murders, the defendant was suffering from mental health issues such as depression and paranoia, which were exacerbated by his use of over-the-counter cough medicine. It must not have looked like that great of a case, because the defendant ultimately pled guilty. That same year, one James McVay broke into the house of Maybelle Schein and stabbed her to death.  He pled guilty but mentally ill to murder charges. At his sentencing, the defense said that the night before the murder, McVay had mixed alcohol with cough syrup, which caused him to suffer hallucinations. In addition, the defense claimed that McVay suffered from mental illness as well as alcohol and drug abuse issues. The jury wasn’t convinced and imposed the death penalty. Similarly, Nebraska man Shane Tilley stabbed a friend to death while, he claims, high on cough medicine.  That became less of a focus during the trial when a doctor testified that he suffered from a schizoaffective disorder. He was found not guilty by reason of insanity and sent to a treatment facility. Per the most recent news coverage of him I could find, from 2017, he is still in that facility, though he did escape once, but only for a few hours.   These kinds of claims may seem like self-serving, desperate attempts to avoid the consequences of one’s actions, but there may be a kernel of validity to them.  Many cough medicines contains the ingredient dextromethorphan (DXM). When taken in high doses, DXM can cause mania and hallucinations, and result in assault, suicide and homicide, says one study.  If you ever hear of legal precedent being set vis a vis cough syrup, do let me know. I’m on FB/I, T, contact on website and you can always leave me a voicemail at 804-404-2669. In fact, feel free to leave me a voicemail with any cool facts you’ve found or questions that have been nagging you.   Physical health and mental health have a cyclical, causative relationship, so it’s no great surprise that people have tried to use their physical condition to explain or excuse their actions.  Nearly as buzzy in the headline lexography as Twinkie Defense is the PMS defense. It first appeared in England in 1980, when a woman who ran her ex over with her car and only lost her license for a year and the following *day another woman placed on probation for carrying a knife and threatening to kill a policeman, even though she was already on probation, for stabbing a woman to death.  The most notorious case in the US, the one that put the PMS defense on the map, as it were, came in 1982, when Shirley Santos tried to have a felony child abuse charge dismissed. She too reversed position and pled guilty. Elizabeth Holtzman, the Brooklyn District Attorney, said ”The withdrawal of this defense,” she said, ”is a signal that PMS is a defense without merit.” That didn’t stop Jaime Lynn Irvin from trying it in 1983 after she stabbed her roommate or Margaret Pitt in 1985 when she intentionally repeated crashed into another car.  Emphasis on ‘trying.’ In Pitt’s case, she was actually convicted by an all-female juror.   The PMS defense didn’t go out with hair metal and day-low neon mesh belly shirts for guys, though.  A woman in my home state of Virginia, which only seems to generate good news at a rate of 3 out of 100 stories, convinced a judge she was not guilty of drunken driving after arguing it was premenstrual syndrome, not drunkenness, that caused her erratic behavior.  The state trooper that pulled Geraldine Richter over reported a strong smell of alcohol and when he asked her how much she’d had to drink, she told him it was none of his damn business. After failing the field sobriety, Dr. Richter (did I mention that?) kick the trooper in the groin and had to be restrained.  At the police station, she kicked the breathalyzer table far enough to be put in leg restraints too. She blew a .13 BAC. Dr. Richter’s defense team also claimed her violent reaction stemmed from the trooper threatening to take her three children, who were in the car. Still, expert testimony of how severe PMS can be and even how it can affect alcohol absorption — Richter claimed she’d had four glasses of wine over six hours — swayed the judge.  Assistant Commonwealth’s Attorney Grace E. Burke called the PMS argument “ridiculous.” “It is a typical case of drunk driving. “[This defense] hurts the credibility of women. I can’t tell you how ridiculous I think the defense is. She used PMS to explain away her outlandish conduct toward the officer at the scene. The men in the world I’m sure are just shaking their heads at this one.” Can’t say I disagree with her. While severe hormone changes can affect a person, see also post-partum depression and psychosis, you can’t help but feel like the next step is being called an irrational and hysterical woman. Interestingly, the PMS defense has been used in India, a nation whose people have a rather prickly issue with misogyny, where two-thirds of women have been the victim of domestic violence.  On a totally justifiable tangent, google the “Abused Goddesses” campaign, a photo series portraying Hindu goddesses as victims of abuse for the Save Our Sisters initiative. Back to the case.  A 21-year-old woman was accused of pushing three children into a well, one of who could not be rescued. The trial court convicted her of murder and attempted murder under the Indian Penal Code.   This case was then appealed before the Rajasthan High Court where the lawyer for the accused argued that at the time of the incident, Chandra was suffering from premenstrual stress syndrome (commonly referred to as PMS). This, it was argued, led to Chandra becoming aggressive during certain periods of time in a month. Under Section 84 of the Indian Penal Code, no action which is taken by a person who is of unsound mind and is incapable of knowing that what he/she is doing is wrong, can be considered a crime. According to the judgment, Chandra’s counsel relied on this provision for her defence and argued that PMS may cause some women to become violent and prone to committing crimes like assault and suicide. He relied on past instances of violent behaviour by Chandra and ‘madness’ to demonstrate that she was a victim of moments of mental unsoundness. This supported the defense that Chandra was “labouring under a defect of reason triggered by premenstrual stress syndrome”.  A two-judge panel overturned her guilty verdict.   Your menstrual cycle comes once a month, but sleep-walking could happen every night.  Yes, sleepwalking. Or, to give it its proper name: somnambulism. “Are you kidding?’ you may scoff.  “People really claim they were sleepwalking, and it works?” Scoff all you want, but kinda, yeah. If your only exposure to sleepwalking is through cartoons and movies, you might not believe how high-functioning a sleepwalker can be.  They can even carry on conversations. Sleepwalking falls under the heading of parasomnia, a category of sleep disorders that involve abnormal movements, behaviors, emotions, perceptions, and/or dreams that can occur at any stage of sleep.  Just as I was surprised about the PMS defense working in India, I didn’t expect to find cases of sleepwalking as a legal defense as far back 1846. You would think they’d label the person ‘murderer’ or ‘possessed’/’a witch,’ with no middle ground.  But no, people were more likely to believe it back then.   In 1846, Albert Tirrell was acquitted in the murder of a prostitute in Boston.  Her throat was slit, nearly to the point of decapitating her, and he set fire to the brothel.  His lawyer stated that Tirrell was a chronic sleepwalker and perhaps committed the crime while asleep.  The jury agreed and found him not guilty, although many contemporaries didn’t buy the defendant’s version of events.  The fact that he fled to New Orleans after the murder, which was no mean feat in those days, does raise an eyebrow. A few decades later, a man fell asleep in the lobby of a Kentucky hotel.  When a porter shook him to try to rouse him, the man drew a gun and shot the porter three times. While the porter held him on the floor, the man repeatedly yelled, “Hoo-wee!” He reportedly rose, left the room, and told a witness that he’d shot someone.  Her was found guilty of manslaughter, but the conviction was reversed on appeal because evidence that he had a lifelong history of sleepwalking and that he’d been sleep-deprived before the attack was excluded from the first trial. The conviction was also reversed for a Texas man in the 20’s who thought he heard a noise in the night and began firing the gun he had under this pillow, killing his girlfriend.  The jury hadn’t been informed of the possibility that he could have been asleep and have fired the shots without volition while in a somnambulistic state.   Kenneth Parks of Canada was acquitted in the 1987 murder of his mother-in-law after using the sleepwalking defense.  What’s most bizarre about this case is that he drove 14 miles to his in-laws’ house to do it, even though by all accounts they had a good relationship.  Parks strangled his father-in-law unconscious and bludgeoned his mother-in-law with a tire iron before stabbing them both with a kitchen knife. The woman died; the man barely survived.  Parks then arrived at a police station, confused about what had happened in the preceding hour and seemingly oblivious to the fact that he’d severed tendons in both his hands during the attack.  That obliviousness to pain, along with other factors, including a strong family history of parasomnias, led experts to testify that Parks had been sleepwalking during the attack.   In 1994, Pennsylvania man Michael Ricksgers was convicted of the murder of his wife.  He claimed he’d accidentally killed her during a sleepwalking episode, which defense lawyers argued was provoked by a medical condition, sleep apnea.  Prosecutors presented an alternative explanation: that Ricksgers was upset that his wife was planning to leave him. Ricksgers was sentenced to life in prison without parole.  In 1997, Scott Falater, a devout Mormon, stabbed his wife 44 times with a hunting knife before drowning her in the backyard pool. Falater, who had no apparent motive, tried to mount a sleepwalking defense, saying he had a history of sleepwalking, was sleep-deprived, and was unconscious at the time of the attack.  But he’d also tried to conceal evidence by stuffing his bloody clothes and the knife in a box in his car. A jury found Falater guilty of first-degree murder.   Stephen Reitz of California killed his married lover, Eva during what was supposed to be a romantic Catalina Island getaway in 2001.  He smashed her head with a flowerpot, dislocated her arm, broke multiple bones, and stabbed her. Reitz told police that he had no recollection of the attack, though through “flashbacks” he recalled believing that he was in a scuffle with a male intruder, an excuse that was also used in a few of the other cases.  His parents testified that he had been a sleepwalker since childhood. The jurors didn’t buy it, convicting Reitz of first-degree murder, presumably influenced by the defendant’s history of violence towards the victim. So if you’re keeping score out home, out of 7 cases using parasomnia as mitigation, we have 2 not-guilty, 2 conviction reversals, and 3 convictions.   While we’re using pleasant Latin words, let’s look at the automatism.  The automatism defense is a claim that physiological or environmental factors caused the defendant to commit criminal actions involuntarily, thus without criminal intent.  It relies specifically on automatism of Penfield, a rare type of epilepsy, named for the neurosurgeon who first diagnosed it, which supposedly leaves people unable to control their own actions due to stimulation of the amygdala.  While all of the cases on today’s show were tragic, this one involves a police officer and an unarmed youth, so I don’t begrudge you if you need to jump30.   On Thanksgiving Day 1976, responding to a report of a man with a gun in the Cypress Hills housing projects, Officer Torsney encountered a group of youths. After a brief conversation, Torsney leveled his gun at 15 Randolph Evans and shot him point-blank in the head.  Torsney made no effort to check on the boy’s condition but instead walked to his patrol car, got in, removed the spent cartridge from his weapon, and calmly replaced it with another bullet. Torsney’s partner, Officer Matthew Williams, who was already in the vehicle when Torsney shot Evans, asked, “What did you do?” Torsney responded, “I don’t know, Matty. What did I do?”  Rather than claiming Evans had a gun, Torsney’s defense attorney use it as proof that Torsney must be sick, implying he wouldn’t have fired otherwise. One year after Evans’ funeral, Torsney was found not guilty by reason of insanity and remanded to Creedmoor Psychiatric Center in Queens, where he would only be for a year. This was the only case of the attempted use of automatism of Penfield that I could find.   Let’s get out of shades of current events and into some pop culture.  The first Matrix movie is a cultural institution (the sequels not so much), influencing not only future movies, but even legal precedent, not once but several times.  Ohio resident Tonda Lynn Ansley was found not guilty by reason of insanity in 2002 after claiming she thought her landlady, a college professor, was part of a conspiracy to brainwash and kill her, motivating Ansley to shoot her landlady several times in the head.  Upon questioning, Ansley told detectives that she believed that the world they were in was not real, and that she was living in a computer simulation like in The Matrix. “They commit a lot of crimes in ‘The Matrix,'” Ansley allegedly told police. “That’s where you go to sleep at night and they drug you and take you somewhere else and then they bring you back and put you in bed and, when you wake up, you think that it’s a bad dream.”  In this alternate reality, she said that her landlady had been involved in a conspiracy to keep her brainwashed and under the control of the simulation with the ultimate goal of killing her. In Ansley’s mind, this was all simple self-defense against the sinister agents conspiring to keep her in the virtual dream world.   In 2000, 27-year-old computer science student Vadim Mieseges brutally murdered and dismembered fellow student and roommate Ella Wong, before unceremoniously scattering her body parts around the area.  When Mieseges was found by police, he was wandering around a mall with a knife, high on drugs, and acting bizarrely. Upon his arrest, he spouted nonsense gibberish for a while before telling authorities that he was living The Matrix, and that therefore Wong had never really been a real person at all.  Eventually a judge would declare him mentally incompetent to stand trial and he was institutionalized. Though he didn’t use it in his defense, teenage D.C. sniper Lee Boyd Malvo reportedly wrote the words, “Free yourself of the Matrix” in sketches seized from his cell and told authorities that if they watch the movies, they’d understand him.   In February of 2003, Joshua Cooke, 19, of (sigh) Virginia murdered his parents with nine shotgun blasts between them, then called police and matter-of-factly explained to them what he had done.  He then calmly stood outside of his home unarmed and drinking a soda; he was brought in without any struggle and was compliant and well-behaved. By all accounts, Cooke had been absolutely obsessed with The Matrix series, dressing in trench coats, covering his bedroom walls with posters, and watching the movies over and over again.  This obsession morphed into him thinking he actually lived in the Matrix. According to one of his defense attorneys, Mani Fierro, “Defendant Cooke harbored a bona fide belief that he was living in the virtual reality of ‘The Matrix’ at the time of the alleged offenses and thus could not distinguish right from wrong.” But the prosecution pointed out that Cooke had calmly called police to turn himself in, and had told the 911 operator that he was “definitely going to get the death penalty for this,” implying that he knew exactly what he was doing and was aware of the consequences.  If he really thought his parents were bits of dripping green code, he wouldn’t have bothered. Ultimately Joshua Cooke entered a plea deal, and changed his plea to guilty for a sentence of 40 years in prison.   Bonus fact: the scrolling computer code in the Matrix is recipes from a sushi cookbook.   And that’s where we run out of ideas, at least for today.  In 1871, Thomas McGehan was on trial for the murder of Tom Myers, the result of a barroom brawl. McGehan’s lawyer, Clement Vallandigham, set out to prove that his client was innocent because he believed the victim had shot himself after trying to draw his pistol from a kneeling position. In an attempt to prove his case, Vallandigham put what he thought was an unloaded gun in his pocket, kneeled down to recreate the scene, attempted to pull the pistol out of his pocket, and accidently shot himself in the abdomen. He died a few days later but his client, Thomas McGehan, was acquitted and released from custody. Sources:   Show Notes:   Social: