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The D-cup Defense: Five Outrageous Courtroom Strategies

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You can’t get away with murder … or can you? If you’ve been accused of a felony or misdemeanor and have been eating junk food or drinking coffee, have a pierced tongue, or are female, read on. You just might find a successful defense strategy you can use in court.

One More Reason to Put Down the Junk Food
In 1978, Dan White, a San Francisco supervisor, confessed to the fatal shooting of mayor George Moscone and supervisor Harvey Milk. White’s trial, or rather the press surrounding the trial, made infamous the so-called Twinkie defense, which argued that White’s binging on Twinkies the night before the murders sent him into a hypoglycemic rage.

But this is not the complete story. Paul Krassner, who covered White’s trial for the San Francisco Bay Guardian, revisited the case in an October 2010 article for The Huffington Post. Krassner, credited with coining the phrase “Twinkie defense,” writes that he jotted those two soon-to-be notorious words while listening to White’s legal team as it argued that the defendant’s binging on junk food was a symptom of depression, a condition that qualified him for acquittal on the grounds of diminished capacity. The San Francisco Chronicle reported at the time that “[d]uring the trial, no one but well-known satirist Paul Krassner?who may have coined the phrase ‘Twinkie defense’?played up that angle.”

In other words, no one in the court during White’s trial claimed that Twinkies made him do it. White’s lawyer merely included his overeating of junk food among the indicators that he was suffering from severe depression at the time of the murders.

The Homicidal Java Jitters
Woody Will Smith’s murder defense seems like a latter-day version of the Twinkie defense. Smith was convicted of strangling his wife, Amanda Hornsby-Smith, with an extension cord and now faces life in prison. But his lawyer, Shannon Sexton, tried to keep him out of jail by arguing that Smith suffered from sleep-deprivation psychosis brought on by too much caffeine, according to CBS News. Sexton claimed during the trial that Smith ingested excessive quantities of energy drinks and diet pills to stay awake because he was afraid that his wife would leave him, along with the couple’s two sons, in the middle of the night. Smith had recently accused his wife of having an affair.

This defense strategy has worked once before: a man was cleared in 2009 after being accused of running over two people with a car in Washington. But the fact that, according to USA Today, Smith did not test positive for caffeine in his system at the time of his arrest might have had something to do with his conviction.

Defendant Takes a Stab at “Pierced Tongue” Argument
A police officer pulled over Brenna Guy of Indianapolis, Indiana, in 2001 for driving on the wrong side of the street; the officer administered a Breathalyzer test that revealed Guy’s blood alcohol content was 0.11 percent, exceeding Indiana’s 0.08 percent limit, according to MSNBC.

Guy’s attorney, Robert Hammerle, argued that the test results were inadmissible because Indiana state law stipulates that no foreign substance can be placed in a person’s mouth during the twenty minutes before a breath test is administered, because doing so might skew the test results. Guy had a pierced tongue. Could her stainless steel stud save her from a DUI conviction?

Unfortunately for her, no. Guy’s case went all the way to the Indiana Supreme Court, where the justices found, in their 4–0 ruling, that the presence of a tongue stud does not invalidate the results of a Breathalyzer test.

Of course, this raises the question: what other “foreign substances” could you put in your mouth during a Breathalyzer test?

She’s Not Crazy, She’s a Woman
In 1982, a twenty-four-year-old Brooklyn mother of six accused of assaulting her four-year-old daughter blamed her behavior on premenstrual stress. According to the New York Times, it was the first time the PMS defense has ever been used in the United States.

The defendant, Shirley Santos, stood accused of beating her daughter for not being quiet, and leaving the child covered with bruises and welts. At her trial, Santos was “distraught and remorseful” and explained that she had just gotten her period.

H. Richard Uviller, a professor of criminal law at the Columbia Law School, condemned the defense argument at the time of the trial. He told the Times that, as a feminist, he felt the claim that menstruation was insanity degraded women.

Santos eventually withdrew her defense and pleaded guilty to the assault. Maybe she realized that menstruation can only get you out of gym class.

But Femaleness Can Be an Asset, Or Two
Is life easier for women with large breasts? A court in Tokyo, Japan, acquitted pinup model Serena Kozakura, thirty-eight, on a charge of breaking into her boyfriend’s apartment after her lawyers argued that the hole kicked by an intruder in his door was too small for the busty lady’s forty-four-inch breasts to fit through.

“I used to hate my body so much,” said Kozakura after hearing the verdict, “but it was my breasts that won in court.”

It Was Worth a Try
You can’t really blame someone for wanting to avoid jail time. If I found myself in any of these defendant’s shoes, I would probably urge my lawyer to scrape the barrel of plausible arguments. (I wouldn’t commit murder or beat a child, though.) You have to give them credit for trying.


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