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A Devastating Blow to Criminal Defense


While Kent continues to provide serious coverage of serious legal stories, I feel I must alert our readers to a story from the business world that spells the end for one of the most fabled criminal defense theories of modern times.

Some here are old enough to remember that in November 1978, former police officer and San Francisco City Council member Dan White shot and killed  Mayor George Moscone and openly gay Councilman Harvey Milk.  White was charged with premeditated murder, but his lawyers miraculously convinced the jury to convict him only of manslaughter.  The theory that brought about this result became an instant icon, of sorts, with the defense bar, and was even noted by Justice Scalia years later in the oral argument in United States v. Gonzalez-Lopez (concerning the right to counsel).

Today, alas, the foundation of the theory passed into history.  The Wall Street Journal has the woeful story





    That is indeed very sad. In addition to giving rise to the eponymous "Twinkie Defense," the Twinkie was also the subject of my very first scientific experiment.

    My brother and I buried a Twinkie (still wrapped) in our back yard to see what would happen. We dug it up a year later. And we ate it. I can attest that it was as fresh as it was the day we buried it. What a truly remarkable product.

    One good thing that came out of the Dan White fiasco was a harmonic convergence of political forces to fix California's screwed-up law of mental defenses and homicide mens rea. The requirement that the defendant be able to "maturely and meaningfully reflect" (i.e., only philosophers can commit first-degree murder) went down the garbage disposal. The McNaughton definition of insanity was restored and codified.

    Similarly, McNaughton was codified in 18 U.S.C. following the Hinckley fiasco, but that case did not involve any unjust desserts.

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