Twinkie defense

The namesake of the Twinkie defense is the Hostess Twinkie commonly regarded as the quintessential junk food in the United States. In the trial of Dan White Twinkies and Coca-Cola were cited as a contributing factor exacerbating White's depression helping him avoid the death penalty for the dual assassinations of San Francisco Mayor George Moscone and Supervisor Harvey Milk using a diminished capacity defense. Photo: Larry D. Moore

In jurisprudence, Twinkie defense is a derogatory label for a criminal defendant's claims that an unusual biological factor played a role in the cause or motives of the alleged crimes, and due to this biological factor they should not be held liable or the liability should be mitigated to a lesser offense due to diminished capacity. While biological factors influence behavior, the label of Twinkie defense implies that the factors cited are ones most people would view as not being sufficient to account for the crimes for which they are being prosecuted.

The phrase comes from the 1979 double assassination trial of Dan White in San Francisco when psychiatrist Martin Blinder, one of the defense therapists, spoke about White's depression and how he "shunned" his regular habits and "indulged in Twinkies and Coke" two popular junk foods which worsened his condition.

Twinkie defense was probably coined by one of the alternative press reporters as a media-spin term to explain the defense but the phrase and short-handed explanation was immediately picked up by widely-read San Francisco Chronicle columnist Herb Caen and nationally by Newsweek magazine. Within months the phrase was used to illustrate the perceived problems with diminished capacity defense and within a few years diminished capacity was abolished with Twinkie defense becoming "synonymous with diminished capacity." Other Twinkie defense trigger items may include the effects of allergies, stimulants such as coffee and nicotine, sugar and vitamins.

History

People vs. Dan White

The phrase comes from the 1979 People vs. Dan White trial of Dan White, a former San Francisco (U.S.) Supervisor who assassinated Mayor George Moscone and Supervisor Harvey Milk on November 27, 1978. At the trial, a noted psychiatrist, Martin Blinder, testified that White had been depressed at the time of the crime, pointing to several factors indicating White's depression: he had quit working; he shunned his wife; normally clean-cut, he grew slovenly; normally a fitness fanatic and health food advocate, he had been consuming Twinkies and Coca-Cola. As an incidental note, Blinder mentioned theories that elements of diet could worsen existing mood swings. In the trial, facts of the murders were not challenged, but in part because of the testimony from Blinder and other defense witnesses the defense successfully argued for a ruling of diminished capacity. The jury deemed White incapable of the premeditation required for a murder conviction and he was convicted of voluntary manslaughter instead. White, ironically, had campaigned for his former Supervisor position stating "crime is No. 1 with me" and had strongly supported the death penalty for murders such as the ones he had committed.

Background to assassinations

The verdict was unexpected and unpopular, with many believing that the conservative jury that had been kept clear of anyone "remotely pro-gay" and "filled" with "white conservative Catholics, half of them from White’s district" had been willing to accept an outlandish murder defense for "political vengeance" primarily because one of the victims, Milk, was a highly-visible "avowed homosexual" who fought for "unfettered political power for gay people" becoming the most famous openly gay politician in the world.

A year earlier in 1977 San Francisco replaced city-wide elections with district elections that ushered in the most diverse Board of Supervisors the city had ever seen including the former police officer and firefighter White as well as the gay and liberal Milk. White had to resign from being a firefighter as San Francisco charter barred people from holding two city jobs at the same time so he took up a second job to supplement the pay downgrade, running a restaurant business, which failed. White, a Roman Catholic and outspoken anti-gay conservative, who was elected with strong support from the city's police union in part to fight "official tolerance of crime and of overt homosexuality" was counterpoint to Milk, an outspoken liberal who "frequently opposed him on the board."

In the months preceeding the killings Milk became even more visible in the media debating California Senator John Briggs statewide on Proposition 6, The Briggs Initiative, to "prohibit homosexuals from teaching in California public schools," a topic on which White and Milk "were sharply divided" because it would have empowered Californian school boards to fire teachers that "practiced, advocated, or indicated an acceptance of homosexuality."

Milk also sponsored a San Francisco law barring "anti-gay discrimination" in the workplace which passed the same time the Briggs Initiative failed and within days White resigned his city supervisor seat citing too little salary to support his family and that he was "unhappy with the ethics he found in the political world." White's supporters convinced him to rescind his resignation but he was denied by the "liberal-leaning" Mayor Moscone largely at the urging of Milk, who advised Moscone to use the opportunity to get a liberal majority on the Board. Milk and Moscone were friends and Milk reminded Moscone that the mayor's re-election would be difficult without the gay vote and that many of Moscone's proposals had been defeated because of the conservative majority.

The morning that Moscone was to announce his replacement for Dan White both he and Supervisor Milk were assassinated by White who had entered San Francisco City Hall through an unlocked window to avoid detection of his police revolver; after a loud argument he shot Moscone at close range, reloaded and went down the hall to kill Milk delivering a coup de grâce to each victim. White quickly left the scene and met his wife at nearby Saint Mary's Cathedral the principal church of the Roman Catholic Archdiocese of San Francisco and within hours he turned himself in at the police station where he used to work.

Phrase coined

In stories covering the trial a few months later, satirist Paul Krassner had played up the angle of the Twinkie, and he would later claim credit for coining the term "Twinkie defense". Just after the verdict, Herb Caen wrote in the San Francisco Chronicle about the police support for White (a former policeman himself) and their "dislike (understatement) of homosexuals" and mentioned "the Twinkie insanity defense" in passing. News stories published after the trial, however, frequently reported the defense arguments inaccurately, claiming that the defense had presented junk food as the cause of White's depression and/or diminished capacity, instead of symptomatic of and perhaps exacerbating an existing depression.

Charged with first-degree murder and facing the death penalty sentence White was instead convicted of voluntary manslaughter with Judge Walter F. Calcagno sentencing him to seven years and eight months in prison. With time off for good behavior, White would be free in five years.

Verdict aftermath

Further information: White Night Riots

Discontent with the verdict and resulting sentence led to the San Francisco's White Night Riots with gays and Milk supporters rioting at San Francisco's City Hall including breaking in the glass doors and burning twelve police cars. Later that night a retaliatory police attack took place against the Elephant Walk bar in the center of the gay Castro neighborhood less than a block from Milk's camera shop and campaign headquarters. The incidents brought additional international attention to the assassinations and trial.

Diminished capacity abolished

Further information: Diminished responsibility

As a result of the White case, diminished capacity was abolished in 1982 by Proposition 8 and the California legislature, and replaced by "diminished actuality", referring not to the capacity to have a specific intent but to whether a defendant actually had a required intent to commit the crime with which he was charged. By this time the "Twinkie defense" had become such a common referent that one participant waved a Twinkie in the air to make his point. Additionally, California's statutory definitions of premeditation and malice required for murder were eliminated with a return to common law definitions.

Twinkie defense was described in detail in Massachusetts Mutual Life Insurance Co. v. Woodall, 304 F.Supp.2d 1364, 1377 n. 7 (S.D.Ga. 2003).

Twinkie defense in popular culture

Execution of Justice is an award-winning ensemble play by Emily Mann chronicling the trial of the People vs. Dan White. The play has been performed worldwide and has been made into a movie.

Harvey Milk the opera in three acts was composed by Stewart Wallace and librettist Michael Korie who were co-commissioned by the San Francisco Opera with the Houston Grand Opera and New York City Opera. The opera was performed internationally in English and German and debuted in San Francisco in November of 1996 including a special performance coiciding with the date of the assassinations. The third act centers on the City Hall murders and the trial including the Twinkie defense.

In the play The Laramie Project, when Aaron McKinney says that he murdered Matthew Shepard because Shepard made a pass at him, Zackie Salmon likens Aaron McKinney's defense to the Twinkie defense.

The Dead Kennedys satirized the verdict in their reinterpretation of I Fought the Law. Jello Biafra, the lead singer of the now defunct Dead Kennedys, summarized the defense in his 1989 spoken word album High Priest of Harmful Matter − Tales from the Trial as a precursor to his own trial for distribution of harmful material to minors.

The first verse of Lost Dogs' song Bad Indigestion is a humorous description of the Twinkie defense ("He sold his soul to the hostess").

The band Automatic Pilot was named after George Solomon's testimony.

The phrase was used in Buffy the Vampire Slayer, Episode #1-11 "Out of Mind, Out of Sight". Cordelia Chase used it to disparage Shylock's famous "Hath not a Jew eyes?" speech during a class discussion of The Merchant of Venice. The speech is from Act III, Scene 1.

The phrase was used on the TV show Curb Your Enthusiasm, season 5 episode 4 - "The Kamikaze Bingo" - in which it was humorously used to point out that an old woman's cheating at bingo in a nursing home could not be excused by high levels of medication.

The phrase was used in the 1991 Roseanne episode "Home Ec".

In the 2006 film Half Nelson, a student recites a report about the White case, intertwined with video from press coverage of the trial. He concludes his report, "This came to be known as the Twinkie defense," then looks to the left, laughs, and says, "Is that for real?"

In the 2000 Law & Order episode "Thin Ice", characters reference the Twinkie defense during a discussion of a homicide defendant asserting a psychological defense of "sports rage".

In the Pani Poni Dash! episode "Endure Patiently and You Will Not Wilt", when a large crab grabs Class 1-C's bus, Himeko holds up two Twinkies and says, "Im gonna use the Twinkies defense!". However, because she realized she was holding them (earlier in the episode, she was hungry), she then eats them.

In the X-Files episode "Sein Und Zeit", Skinner mentioned that Mulder was using a "Twinkie defense".

A similar defense appears in the film Trial and Error, when an expert witness is called to testify that sugar in the Twinkies the defendant had eaten is chemically similar to cocaine, so the defendant's actions should be treated as if in a drug-induced state.

During oral Supreme Court arguments in United States v. Gonzalez-Lopez (No. 05-352) in April 2006, Justice Antonin Scalia referenced the Twinkie defense in discussion of a defendant's right to counsel of choice: "[If I am a defendant,] I don't want a 'competent' lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win."

Additional references

• California Penal Code Section 25-29 from Findlaw
• Trial and Error by Paul Tatara for CNN on June 6 1997. Retrieved March 20 2006.
• Mauro, Tony (2006-04-19). "High Court Debates Defendants' Right to Counsel of Choice". Legal Times. Law.com. Retrieved 2007-02-02. {{cite news}}: Check date values in: |date= (help)

See also

• Chewbacca Defense
• Culture Wars
• Gay panic defense
• Moscone-Milk assassinations

External links

• Snopes: The Twinkie Defense
• "Myth of the 'Twinkie defense'" - San Francisco Chronicle, 23 November 2003
• Murder At San Francisco City Hall (including background and historical photos)

Further reading

• Anderson, Scott. “A City Grieves Good Men Slain,” The Advocate, 11 January 1979 in Chris Bull, ed., Witness to Revolution: The Advocate Reports on Gay and Lesbian Politics, 1967-1999. Los Angeles: Alyson Books, 1999.

• Anderson, Scott. “Moscone: A Passion for People,” The Advocate, 11 January, 1979 in Chris Bull, ed., Witness to Revolution: The Advocate Reports on Gay and Lesbian Politics, 1967-1999. Los Angeles: Alyson Books, 1999.

• “Briggs Is Shocked by Milk’s Slaying,” San Francisco Chronicle. 28 November 1978.

• Butler, Katy. “A Bloody Protest at City Hall: Verdict Angers Gays,” San Francisco Chronicle, 22 May 1979.

• Carrol, Jerry. “George R. Moscone—A Quiet Leader,” The San Francisco Chronicle, 28 November 1978.

• Crewdson, John M. “Harvey Milk Led Coast Homosexual-Rights Fight,” NewYork Times, 28 November 1978.

• Draper, George. “Mayor Was Hit 4 Times,” San Francisco Chronicle, 28 November 1978.

• Fitzgerald, Frances. "The Castro-II." New Yorker, July 28, 1986, pp. 44-63.

• “Friends Speak Out: Moscone Called Compassionate Political Leader,” San Francisco Chronicle, 28 November 1978.

• Fosburgh, Lacey. “Stunned Crowd Gathers Near Scene of 2 Slayings,” New York Times, 28 November 1978.

• Foss, Karen A. “The Logic of Folly in the Political Campaigns of Harvey Milk” in R. Jeffrey Ringer, ed., Queer Words, Queer Images: Communication and the Construction of Homosexuality. New York: New York University Press, 1994.

• Gregory-Lewis, Sasha. “Milk Gets Canned but Keeps on Running,” The Advocate, 7 April 1976 in Chris Bull, ed., Witness to Revolution: The Advocate Reports on Gay and Lesbian Politics, 1967-1999. Los Angeles: Alyson Books, 1999.

• Jennings, Duffy. “Dan White Jury Hears Final Arguments,” San Francisco Chronicle, 16 May 1979.

• Jennings, Duffy. “Several Jurors Weep in Court,” San Francisco Chronicle, 22 May 1979.

• Kaiser, Charles. The Gay Metropolis: The Landmark History of Gay Life in America Since World War II. New York: Harcourt Brace, 1997.

• Kilduff, Marshall and Eugene Robinson. “City Officials Shocked by the Verdict,” San Francisco Chronicle, 22 May 1979.

• “Milk Left a Tape for Release if He Were Slain,” New York Times, 28 November 1978.

• Newton, David E. Gay and Lesbian Rights. Santa Barbara: ABC-CLIO, 1994.

• Robinson, P. "Gays In The Streets." New Republic, June 9, 1979, pp. 9-10.

• Shilts, Randy. The Mayor of Castro Street: The Life and Times of Harvey Milk, New York: St. Martin’s Press, 1982.

• Turner, Wallace. “San Francisco Mayor Is Slain; City Supervisor also Killed; Ex-Official Gives Up to Police,” New York Times, 28 November 1978.

• Weiss, Mike. Double Play. Reading, MA: Addison-Wesley, 1984.