Legal folklore & the "Twinkie defense"

The law has engendered a lot of interesting folklore through the millennia — usually concerning the content of the law. There is a widespread belief, for example, that most American states permit the use of deadly force to defend property. Wrong! (Whether the law should permit this is way beyond the scope of this blog.)

The myth of the "Twinkie defense" and the case of Dan White rank among the most bizarre in American law.

In 1978 Mr. White killed San Francisco Mayor George Moscone and a homosexual city Supervisor, Harvey Milk, and he was later convicted of voluntary manslaughter. White looked guilty of first-degree murder in the press, so his conviction on the lesser charge engendered an enormous public outcry. Misinformation began to circulate almost immediately after the case was resolved, despite the ready availability of debunkage. Almost none of the debating public properly understood the basis for White's defense. Even worse, the state of California enacted dramatic changes to its criminal law — based, at least in part, on the myth — soon thereafter.

Mr. White suffered from depression, and his attorneys argued that this condition reduced his capacity to form the requisite state of mind to have committed the crime of first-degree murder. A great weight of psychological research and legal authority supported this argument. The defense called several expert witnesses to the stand to provide corroborating evidence, and one of these experts made a passing reference to junk food. The night before the killings, White had eaten foods high in sugar, and the expert briefly stated that a sudden infusion of sugar might have contributed to White's loss of control. White's attorney also mentioned this fact in his closing argument; but it was, at best, a peripheral point in the case.

When the jury refused to convict White of murder, the public was outraged, and the stage was set for one of the great legal myths in Anglo-American history to take hold — the myth of the "Twinkie defense." It seemed plausible, to many people, that White's attorneys had hoodwinked the jury into believing that Twinkies had made him do it. This was never part of the defense team's trial strategy, and jurors from the case who have granted interviews over the years have called it bunk in no uncertain terms. Nonetheless, the Twinkie defense continues to enjoy widespread credulity.

The San Francisco Chronicle marks the 25th anniversary of the killings with this excellent article, "Myth of the 'Twinkie defense.'" Some excerpts:

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. [...]

During the trial, no one but well-known satirist Paul Krassner — who may have coined the phrase "Twinkie defense" — played up that angle. [...]

Several weeks later, Newsweek spread the term. And by September, barely four months later, outrage had spilled over into the Legislature. There, politicians debated the diminished-capacity defense, eventually abolishing it, in large part because of the White trial. In the course of the debate, conservative Democrat Alister McAlister, anxious to make his point, waved a Twinkie in the air. Within two years, the phrase had slipped into popular lingo. Newspapers across the country, including The Chronicle, were tossing around the "Twinkie defense" as if it were synonymous with diminished capacity. [...]

"America loves labels," said Dr. Alan Dundee, UC Berkeley professor of anthropology and folklore. He compares our belief in the "Twinkie defense" to the conviction that George Washington cut down the cherry tree. He didn't. Folklore trumps history. "I don't care if the 'Twinkie defense' has any validity or not," he said. "People think it was a factor. And thinking makes it so."