Myth of the 'Twinkie defense'

[madmusic]

The verdict in the Dan White case wasn't based on his ingestion of junk food
- Carol Pogash
Sunday, November 23, 2003

Ask anyone who's heard of Dan White -- and there are fewer and fewer people who have -- how it was that the clean-cut, conservative San Francisco supervisor received such a light sentence in the shooting deaths of progressive San Francisco Mayor George Moscone and gay Supervisor Harvey Milk 25 years ago, and it brings an automatic response: the "Twinkie defense." The impressionable jury, they'll say, swallowed the defense contention that Dan White gobbled Twinkies, which blasted sugar through his arteries and drove him into a murderous frenzy. About as simple as: "Eat a Twinkie, commit a murder."

As Thursday's 25th anniversary of the killings approaches, what survives is a shared understanding of the gross miscarriage of justice: that an angry young man many thought should have received the death penalty instead was convicted of voluntary manslaughter and got a meager sentence of less than eight years (with time off for good behavior, he would end up serving only five years, one month and nine days).

The "Twinkie defense" is so ingrained in our culture that it appears in law dictionaries, in sociology textbooks, in college exams and in more than 2, 800 references on Google. Only a few of them call it what it is: a myth.

more of an interesting story on American psychology: http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2003/11/23/INGRE343501.DTL&type=printable

The story is worth a read. The "Twinkie Defense" rage spread across the country and pretty much wiped out any insanity defense in state after state. Why do you suppose we allow the media to control us like that? We must be dependent somehow to fall for it over and over again, so how does it satisfy us? Was there already a movement to do that and the Twinkie Defense was a good excuse to put a nail in the insanity defense coffin? Is it justice to use a myth to change laws ingrained in human traditions since before the founding of our country? The Twinkie Defense was probably the birth of despising defense attorneys and by proxy eliciting contempt for the Bill of Rights, to the point we have the opposite extreme in Nancy Grace, is that fair?

It is the meme of the Twinkie Defense that is most fascinating and the power it had over "rational" legal minds makes it all the more interesting.

[Lex]

1. Everyone should watch the award winning documentary "The Times of Harvey Milk"

and you will never be the same again. I promise.

[madmusic]

2. Which is saying something...

But I'm not sure what. Some context for the topic, please, since I've not seen it?

[HiFructosePronSyrup]

3. Covers the assasination of Harvey Milk

and Dan White's trial.

Basically, he got a slap on the wrist for the same reason Emmit Till's murder went unpunished. Pure, unadulterated bigotry.

I've never heard of the "twinkie defense" before.

[madmusic]

9. Found it at amazon.com...

And will rent it from NetFlix.

On thing is troubling though; the Editorial Review states "After White shot both Mayor George Moscone and Milk, his defense lawyers convinced the jury that White's judgment was impaired by depression and junk food, resulting in a conviction for manslaughter instead of murder--a verdict that prompted riots."

Does the DVD promote the myth?

[Lex]

12. The film certainly does not promote the myth.

It shows what bullshit the twinkie defense was and tells why that theory was just a sham--a way to 'allow' the jury to give in to its homophobia about Milk and 'liberal' Moscone and let that right-wing nut freeper-type Dan White off the hook.

I'm surprised more people don't know of the film. It won the Oscar for best documentary. It is powerful.

[HiFructosePronSyrup]

13. If you've got the gay and lesbian channel (LOGO?)...

it's been airing recently.

Basically, the defense fenagled an all WASP conservative jury. Basically, they acquitted White because he killed a gay rights activist, and gave him a slap on the wrist because he shot Moscone in the course of "doing the city a favor." The public rioted because when there's no justice, there's no peace. It had nothing to do with junk food.

[madmusic]

18. No LOGO, unfortunately...

So it sounds like it was a shift of blame from homophobia to Twinkies.

[HiFructosePronSyrup]

26. Sounds that way to me too.

the "twinkie defense" as you're describing it sounds like a red herring.

[meegbear]

5. Part of the problem was the prosecution as well ...

they went under the assumption that if they picked a "conservative" jury, he would give a harsh sentence. Instead, they sympathized with him and gave him a light one.

[madmusic]

19. Why do you think that, meegbear?

Why not think they wanted an anti-gay jury instead? You may be right and the prosecution really wanted a 1st degree murder conviction.

[zreosumgame]

25. just semantics by and large

since in general (and yes I know that is generally a fallacy(hum, yes I know I am being a bit discursive today(what? why should I close all these parenthasies? it'fun!) Ok, Ok, stop hitting, I'll close them now, sheesh!)))) and in particulaer at that time, they meant the same thing conservative=anti-gay

[madmusic]

28. And sometimes I'm thick!

Thanks for thinning me. :))))))

[Occulus]

47. Anti-gay jury vs. conservative jury?

There's a difference?

[Sapphocrat]

43. A fine suggestion, Lex. :) n/t

[xchrom]

4. what the media does is pick a topic and threaten americans

with it.

and if there is one thing americans love above all else -- it's to be threatened.

the threat of the ''twinkie defence'' was immediately tied to ''victims' rights'' -- another phrase that the media uses to threaten americans with.

next to being threatened -- the other thing americans love -- is the idea that they can go back be all ''little house on the prarie'' -- only rich.

[MADem]

6. I'm sure Senator Feinstein will never forget the guy--he, in essence, launched her career

I always thought that the case had everything to do with the gayness of one victim, myself. The verdict was a cake that was iced with prejudice against the orientation of Mister Milk. I personally believed it was a textbook case of 'jury discrimination' really.

That said, and others may be of differing opinion, I am one of those people who favors a "guilty and insane" verdict, as opposed to the old "not guilty by reason of insanity." "Guilty and insane" would rule out getting fried or put to sleep, and might shave a few years off the sentence downstream, but it wouldn't contain any up-front assurances like "not guilty by reason of insanity" verdicts get.

My feeling is that Dan White is the OJ of San Fran. He got away with a double homicide.

[TahitiNut]

15. DiFI and Dan White were allies - both opponents of Moscone and Milk.

DiFi even encountered Dan White as he was going from one murder to the next. DiFi's foundering political career was almost entirely founded on this necropolitics - the politics of death.

In almost any other city, DiFi would've been a Republican - but that's not 'pragmatic' in San Francisco, and especially at the time of the murders.

[Greyhound]

30. So glad that some do, in fact, remember. Thanks. n/t

:kick:

[petronius]

7. Fascinating story - I've heard of the Twinkie Defense, and I always

assumed that it was a gross oversimplification, but I hadn't read such a succinct account of the case before. I can see why people like to dumb it down to the Twinkies; it's a pretty complex topic and there are a lot of things in there that many people would prefer not to examine...

[Jed Dilligan]

8. Sounds to me like the prosecution threw the case

because they were in favor of the killings. Just a guess.

[patrice]

10. We have a predeliction for false dichotomies, either it's this or it's that

thinking, no syntheses, no spectrum.

Interesting though, how a common tendency to attribute the causes of other people's bad behavior to their own internal flaws (and our own bad behavior to external situational factors, not our own flaws) was turned on its head with the twinkie defense.

How'd they do that?

[madmusic]

20. Good question...

And part of the problem may be that there is an artificial line drawn between the internal and the external, between psychology and sociology (or the law, if you will). They do in fact influence each other with cause and effect through negative or positive symbiosis. We do not live in a psychological vacuum any more than society is not a sum of its parts.

It's looking more and more like the Right twisted the anger from homophobia and diverted it to Twinkies. One line that stands out is this: "In the course of the debate, conservative Democrat Alister McAlister, anxious to make his point, waved a Twinkie in the air." Then they started passing laws. Was he really so dumb and shallow?

I think not, and think it was intentional. People can understand they don't eat a Twinkie and kill, but understanding the complex social dynamics at the time, including homophobia, would require more work and thought. The Twinkie defense meme was the path of least resistance.

In short, lazy and safe.

[patrice]

45. Good point about "artificial line drawn between internal and external!

All of us need to understand what "lines" are, how they are "drawn", and why. I wonder how we could translate that need into action.

[BrotherBuzz]

11. Everyone knew the 'Twinkie' defense was a sham, including Dan White

He righted the wrong by taking his own life.

[Lex]

14. Exactly. Everyone knew it was BS, but the jury wanted to just give

White a slap on the wrist and this ridiculous theory gave them a way to do that.

There were riots, complete with police cars burning and molotov cocktails, when the verdict came in.

[madmusic]

21. The jury evidently did not fall for it...

But the politicians used it.

[Lex]

22. The jury *did* fall for it to a certain extent. They gave White a mere slap on the wrist

for 2 cold blooded murders!

[madmusic]

24. So what you are saying...

Is that the defense said, "He ate some Twinkies. We rest our case."

The article disputes that.

[Lex]

27. No where did I say anything remotely close to that.

:shrug:

[madmusic]

29. Okay, so we agree the jury did not base its decision on Twinkies.

And politicians used it?

[Lex]

32. Yes, that's probably closer to the truth.

The jury 'used', if you will, the Twinkie Defense as a means to give a clean-cut white guy a slap on the wrist for 2 cold-blooded murders. (Because one was gay and the other one a big lib'ral fellow.)

I don't think they (the jury) truly believed the Twinkie Defense, but it gave them a way to give the verdict they wanted (and one that everyone else knew was an unjust verdict).

Nowdays it is one of those legal myths that everyone likes to parade around as evidence of a justice system gone wrong, but it was simply an aberration, imho.

[madmusic]

34. Now it's confusing...

You seem to deny the Twinkie Defense and perpetuate it at the same time, Lex. The meme is still alive and well and found itself in a recent SCOTUS case:

Supreme Court Debates Defendants' Right to Lawyer of Choice

By Tony Mauro
Legal Times
April 18, 2006

Deputy Solicitor General Michael Dreeben argued that reversal should not be so automatic, urging that some kind of inquiry be required to determine if the rejection of a first-choice lawyer prejudices the outcome of a case, especially when the replacement lawyer is competent.

That kind of inquiry misses the point, Scalia bellowed. “I don’t want a competent lawyer; I want a lawyer who will get me off,” he said. “I want the lawyer who will invent the Twinkie defense.”

“Twinkie defense” is the derisive shorthand phrase referring to the defense argument developed in the 1970s that a diet high in sugar can lead to diminished capacity and less culpability for crime.

Scalia hastened to add that he thought the Twinkie defense was crazy but that a client ought to have the right to pick a lawyer who will try crazy strategies that might just work.

http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1145362818576 And a Google News Archive Search finds many more.

Scalia implies the jury rendered its judgment based on a direct Twinkie cause and effect without any other considerations. That perpetuates the myth and ignores all the other important social issues of that case while continually casting dispersions on defense attorneys. Scalia thinks we should have a right to even those kinds of attorneys (the ruling eventually was that Gonzalez-Lopez deserved a new trial) but that was not what the White case was really about, though many in the public still think so.

So memes keep us shallow and lazy, and I suggest that you saying the jury used the Twinkie Defense skirts the issue of homophobia and mental illness (even if White wasn't actually mentally ill) because no one is going to think of homophobia or mental illness when they think of the Twinkie Defense. They will think of evil defense attorneys instead. I think the Right milked this for all they could to divert attention from homophobia and mental illness and place all the scorn on on defense attorneys. It was a brilliant move, because then the focus made their tuff on crime policies the good guys.

[Lex]

36. Scalia merely applauds the inventiveness of the lawyer who

created the Twinkie Defense. He doesn't give it any legal credence, in fact he kind of dismisses it: “I don’t want a competent lawyer" “I want the lawyer who will invent the Twinkie defense.”

And "Scalia hastened to add that he thought the Twinkie defense was crazy."


Not sure what this sentence means "You seem to deny the Twinkie Defense and perpetuate it at the same time, Lex."

Deny the Twinkie Defense? Deny it what? Deny it worked, deny its existence, deny its impact?

:shrug:

[madmusic]

40. Deny that it became a meme that had nothing to do with Milk.

The meme took on a life of its own and left Milk in obscurity. There are some who know of him, like you do, and know what that trial was really about, like you do; but to most, "The Twinkie Defense" simply means evil defense lawyers. The spin took it out of its real context and put it in a new box. All the subtleties and social context were lost in the process. The real meaning of "The Twinkie Defense" was transformed into NOTHING but bad lawyering.

It's like 1984ing a word and wiping its history away and giving it a new meaning.

Unless you are blaming the defense lawyers and think they were all that caused the injustice. If that is true, then your use of the Twinkie Defense in this context makes sense.

[Lex]

41. Yes I agree it that it became a meme that had nothing to do with Milk.

Clearly there are loads of people who know about or have heard about the "twinkie defense" and just use it to trash defense lawyers with, even today.

You'll like the documentary. Let me know what you think when you see it.

:hi:

[aikoaiko]

16. The phrase "the twinkie defense" was just a sound bite.

The way I understood it, the defense used defendants eating of twinkie as evidence that something was amuck with him psychologically since he would never eat twinkies. It could have been any behavior that was atypical of the defendant such as listening to Rush, watching Oprah, drinking pepsi instead of coke, eating cotton candy. The defense would have used any atypical behavior of the defendant to show that something was "wrong" with him.

[ljm2002]

17. A couple of things...

...I remember it well when the shootings occurred, and when the verdict came down.

Just because the press uses a label that doesn't reflect the whole story, doesn't mean the label is all wrong. The story says that Twinkies were not mentioned, yet goes on to note that HoHos and DingDongs *were* mentioned, as part of the argument the defense made -- that the ingestion of junk food helped to spiral Dan White into his depressive and ultimately murderous state. I have no problem with someone coining a phrase to represent that; that's what good writers and reporters do -- it was catchy, and in my opinion, not misleading.

It is also true that the jury selection worked against the prosecution, seeing as how Dan White was an appealing white guy with a young family, from one of the more conservative areas of the city. He was also a former fireman -- and at that time the fire department was one of the most rabidly homophobic organizations in the city. I wonder why the article failed to mention either of these facts?

Also, the thing about getting his job back. He is the one who left, and he took his time asking for the position back -- in fact I seem to remember, he waited until the decision had already been made who to replace him with. I have always believed that if the replacement had been to his liking, he would not have "asked for" (read: demanded) his job back. Maybe he was pressured by others; who knows.

I also wonder why the article fails to mention the real end of the story: after serving his (much abbreviated) time, Dan White committed suicide within a year of getting out. He went into his garage and started the car, suicide by carbon monoxide. I don't recall it making anyone happy; most of us simply wished there had been a just verdict in the first place.

How could they say that a man who went there with a loaded gun, climbed in a window to avoid metal detectors, blew Mayor Moscone's brains out, then calmly reloaded, walked down the hall, and gunned down Harvey Milk -- how could they say that was anything other than cold blooded premeditated murder? The expression "the Twinkie defense" encapsulated all of the outrage and frustration that many of us felt at the time.

Finally: this event catapulted Diane Feinstein into the mayorship and ultimately into national politics. At the time of this incident, she was a very impressive and calming figure; most of us gave her lots of credit for how she handled herself. Also later, as mayor, she approved a $20M earthquake retrofit of Candlestick Park, and by doing so, probably saved many lives when the Loma Prieta earthquake hit in 1989. On the other hand, I never liked her political coziness with Big Business, and she is not my favorite politician -- although I like her better than any Republican who has run against her.

[madmusic]

23. The article, I think, is about the meme...

And that explains why it doesn't go into all the details. The phrase is misleading if it unjustly spreads as an excuse to attack all insanity defenses, which I think is also what the article is about: the power of myth. Unless the jury did in fact base its verdict on the Twinkie Defense, which they evidently did not do, then it was and is not reality based.

The meme was so general and all-encompassing that it lost all sense of anything specific, and so had no place in the thought of individual cases of other defendants. Not only that, the meme displaced responsibility from the real issue, mental illness and homophobia, and placed in on defense attorneys, juries and the Bill of Rights.

That's a neat trick that is still common today in the news world of politics.

[ljm2002]

33. Hmph...

...it went into enough details to mention that he was white and conservative, but neglected to mention his connection with the fire department? This fact about Dan White was ALWAYS mentioned in articles at the time, and was very salient, given that department's homophobic history.

The fact is, the meme was not "unjust", it was just coopted by the right wing and twisted to their own purposes. This is what they excel at; it does not make the phrase wrong.

Sorry -- this article for some reason just struck me as having a hidden agenda. I found it interesting that it provided a platform for a juror to defend their actions lo, these many years later. But when you get right down to it, this verdict was simply an outrageous injustice, which by definition cannot be "justified".

Guess we'll just have to agree to see it differently.

[madmusic]

35. We do agree, though, I think.

"it was just coopted by the right wing and twisted to their own purposes" and that is the point.

A search of the Google archives finds:

Results 1 - 10 of about 86 for "twinkie defense"

Results 1 - 2 of 2 for homophobia "twinkie defense".

Who won?

EDIT: for clarity. That search was for free (No price) articles.

[Greyhound]

31. Same as the McDonald's hot coffee myth. M$M makes it sound like somebody

won a merit-less lawsuit for a large pile of cash, when the facts show the exact opposite. Yet what is remembered?

[readmoreoften]

38. Yes, that case was incredibly merit based. The coffee was so hot that when it spilled on her lap

it gave her third degree burns that went all the way to her bones. That's what I heard in an interview anyway. If a company gives you a drink that is so hot that it would disfigure you for life by simply drinking it, then the company is in the wrong. There are actual legal/consumer guidelines for the heat limit of beverages. McD was in the wrong.

[Greyhound]

44. Yet any "average amerikan" will tell you how McD's was the victim

and they really believe that a jury would award a 7 figure judgment to a woman for spilling coffee in her lap. It's so frustrating that they will buy absolutely any shit, no matter how outrageous, that the idiot-box tells them.:banghead:

[unblock]

37. so the "twinkie defense" is not that he ATE a twinkie, but that he SHOT a twinkie?

:hide:

[readmoreoften]

39. Oh, sounds like it was gay panic. A much more reputable defense.

So, if you suffer from depression exacerbated by eating ho-hos and ding-dongs you can get a lighter sentence when you kill gay politicans. And folks are worried that it's called the Twinkie Defense?

[kdpeters]

42. Schmidt and Benton make absurd excuses for murder, now object to an aptly absurd label

Darlene Benton, who was on that jury, takes umbrage at that. "People think it was about Twinkies and gays," she said. "It wasn't.

No, it wasn't about twinkies, but it was certainly about gays. It was about hippies, Latinos, Chinese, liberals, and any other riff-raff that would dare to challenge the privilege and power of clean cut all-American good old boys. Convince me that a liberal queer who stalked and murdered a white cherubic former cop would have been treated so gently.

I was born and raised in San Francisco. I've never been against gay people.

I'm overwhelmed by the understatement. /sarcasm "Litotes" It's one of my favorite rhetorical devices (except in this case). You can't positively affirm seeking justice for a gay victim, so you retreat into a meaningless denial of the opposite.

You know, I would understand if you simply acknowledged that you didn't know then what you know now. That you were wrong, but that the American Psychiatric Association still classified homosexuality as a mental illness, that even the authoritative voices were wrong. But don't deny the obvious and expect any quarter from me. You're still trying to justify your own heterosexism.

[warrior1]

46. jealousy

and a righteous belief of his elitism.