Twinkie Defence

Watching Law & Order: SVU I heard one of the show’s main police officers, Detective Elliot Stabler, refer to a defendant’s proposed defence as a ”Twinkie Defence”.   Intrigued by the term, I looked into it.

(Note: this post uses the Australian spelling “defence” rather than the US spelling “defense”).

That expression is now used in the US as a general term for any improbable legal defence. It originates from newspaper coverage of the 1979 trial of Dan White for the murders of San Francisco supervisor Harvey Milk and Mayor George Moscone, as depicted in the film Milk.

Psychiatrists called by the defence did not mention Twinkies. They did say that White had been depressed at the time that he shot Milk and Moscone, as indicated by his having quit his job, shunned his wife and become slovenly in his personal appearance and habits. Furthermore, whereas he had previously been a fitness fanatic and advocate of health foods, he had now become a consumer of junk food and soft drinks. Psychiatrist Martin Binder mentioned theories that elements of diet could worsen mood swings. Because of the psychiatric evidence that White’s capacity for rational thought had been diminished, the jury convicted White of voluntary manslaughter instead of murder.

The decision and the subsequent lenient sentencing (7 years, 8 months in prison with two thirds to be served before parole) was so unpopular and derided that it resulted in rioting by the SF gay community.

In his comments on the trial, satirist Paul Krassner had used the term “Twinkie defence”, notwithstanding that Twinkies had not been specifically mentioned, nor had junk food been directly blamed. At the highest, the defence had said that junk food consumption was symptomatic of depression and could have worsened mood swings. Many newspaper stories afterwards referred to the Twinkie Defence as though it had been specifically pleaded in the more specific sense.

In the public mind it developed an identity of its own, so much so that during oral Supreme Court arguments in United States v Gonzalez-Lopez (No. 05-352) in April 2006, Justice Antonin Scalia referred to the Twinkie defence 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 who's going to get me off. I want a lawyer who will invent the Twinkie Defence [...] I would not consider the Twinkie Defence an invention of a competent lawyer [...] but I want a lawyer who's going to win for me."

The Twinkie Defence should not be confused with:

The Chewbaca Defence:

From South Park, a defence which aims to deliberately confuse the jury, being a parody of the closing arguments of lawyer Johnny Cochran in his defence of O J Simpson. In the South Park episode from which it originates, Cochran is defending a record company against Chef and addresses the jury:

Cochran

...ladies and gentlemen of this supposed jury, I have one final thing I want you to consider. Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookie from the plane Kashyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!

Gerald Broflovski

Damn it!... He's using the Chewbacca defence!

Cochran

Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you're in that jury room deliberatin' and conjugatin’ the Emacipation Proclamation, does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests.

The Idiot Defence:

In the US, the idiot defence is a satirical term for a legal strategy where a defendant claims innocence by virtue of having been ignorant of facts of which the defendant would normally be expected to be aware. Other terms used for this tactic include "dumb CEO defence," "dummy defence," "ostrich defence," and “Sergeant Schultz” defence." The last is named after the character of Sgt Schultz in the 1965-1971 television series Hogan’s Heroes. Schultz prefers to look the other way when confronted by evidence of the covert activities of the prisoners, stating "I hear nothing, I see nothing, I know nothing!" (or, more commonly as the series went on, simply "I know nothing–NOTHING!") so as to avoid being blamed for anything going wrong.

The Streaker’s Defence:

Allana Kereopa streaked across the finishing line ahead of the horses at the Doncaster Handicap of 13 April 1974 at Randwick racecourse, watched by 52,000 punters. Allana tried to escape via the member's enclosure, causing the gatekeeper to say "You can't come in here, you haven't got a badge on!"   Her excuse to the magistrate was "It seemed like a good idea at the time," thereafter known as "The Streaker's Defence".

In 1983 Senator Gareth Evans used a RAAF plane to perform a reconnaissance mission over the Franklin Dam to gather evidence as part of the Federal Government case that the Tasmanian Government was not complying with Federal legislation to stop work. This illegal act caused a storm of criticism, to which Evans responded “I can only plead the Streaker’s Defence: ‘It seemed, your worship, like a good idea at the time’. “