Posted 12/11/2008

HARVEY MILK'S LEGACY

The murder trial of Daniel James White has created a nightmare for prosecuting attorneys and a bonanza for violent criminals. Some day you may have to pay.

Daniel James White was a former San Francisco city supervisor who murdered rival city supervisor Harvey Milk and San Francisco mayor George Moscone in 1978. The murders were clearly premeditated – coldly calculated and viciously executed.

When White was tried in 1979, everyone expected him to be convicted of murder.

But his attorney, Douglas Schmidt, came up with a novel defense. He claimed that White has suffered "diminished capacity" because he had overindulged in highly-sugared junk food the day before the incident. Because Harvey Milk was openly homosexual, the trial became a highly charged political event. The homophobic members of the jury were looking for a way to take White off the hook – off the murder hook.

The defense attorneys' claim that "the junk food made him do it" was the perfect hook. The conflicted jury verdict lowered White's conviction from murder to manslaughter, which called for a seven-year prison sentence. With time served, White was back on the street in only three years.

Imagine, three measly years for committing a premeditated double murder.

Attorney Schmidt's junk food defense was quickly dubbed "the Twinkie Defense." Soon every criminal defense attorney in America was working out his version.

One murderer was defended on the basis that "the drugs made him do it." This became known in the trade as "the Zoloft defense."

Many outraged legislatures have passed legislation which prohibits the "the Twinkie Defense" – and all other diminished capacity defenses.

But criminal defense attorneys are a highly imaginative bunch. And they are still coming up with creative murder defenses similar to "the Twinkie Defense."

Here are some of the creative "diminished capacity" pleas you may see in the future:

"Ladies and Gentlemen of the jury, I am going to show you why my client, Elmer Flub, should not be responsible for the death of Millie Mallory. It's all because of the way little Elmer was treated when he was a baby.

"His parents cruelly took him for long walks in his baby stroller. During these walks, little Elmer was forced to face the front, constantly seeing vicious poodles and big, nasty-looking children. He was forced to see the bumpers of terrifying automobiles and trucks when crossing the street. Never once did he face his parents for love and reassurance.

"These cruel walks in his stroller created a terrible trauma in Elmer's little mind. This is what caused him to kill Millie Mallory. Her hairdo, which is shown in Defense Exhibit Five, reminded Elmer of all those vicious poodles he saw from his stroller.

"Ladies and Gentlemen, I will call to the stand a distinguished scientist from London who has conducted a major study of infants in baby strollers. His study proves beyond a reasonable doubt that babies in forward-facing strollers are more stressed and more prone to emotional problems than babies who sit facing their parents. The babies in face-to-face prams are twice as likely to fall asleep and have lower heart rates. This means they are less stressed because they see loving parents and not vicious poodles and terrifying pickup truck bumpers.

"This is why you must find my client innocent of murder. He had diminished capacity caused by ‘Infant Stroller Syndrome.' In short, the stroller made him do it."

The following diminished capacity defense could rapidly sweep through the nation's courts:

"Ladies and Gentlemen of the jury, I will show that my client, Willie Lee, cannot be convicted of murdering his neighbor, Sammy Washington, because he was suffering extreme stress at the time of Mr. Washington's death. Mr. Lee's action was caused by the cruel and inhumane environment he was raised in.

"His neighborhood was one of broken windows, dirty clothes, filthy streets and walls of ugly graffiti. When Mr. Lee visited Mr. Washington in his slum apartment, it reminded him of his childhood environment and caused Mr. Lee to lose control and strike Mr. Washington. Mr. Lee was innocent because his anger was caused by his being raised in an ugly, violent environment. In short, he is innocent because the environment made him do it.

"Ladies and gentlemen, I will bring a scientist to the stand who will testify that his study showed beyond a doubt that urban disorder encourages crime. The study was published in the journal Science. The research proves that graffiti on walls and trash in the streets leads to behavior declines.

"This is why you cannot hold Mr. Lee responsible for Mr. Washington's death. He was suffering diminished capacity from seeing the graffiti and trash in Mr. Washington's apartment. In short, the trash made him do it."

* * * *

You will see more incredible "diminished capacity" defenses coming to America's courts. When it comes to imaginative lawyering, America is the place to be. Which is why criminals and terrorists prefer the United States. When you commit a capital crime here, there are plenty of imaginative lawyers to get you off the hook.

If the United States had this kind of imagination in the field of manufacturing, there would be no recession and there would be more than enough good jobs to go around.

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