New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

The Twinkie Defense – Not for Every Case

Criminal attorneys frequently assert novel defenses at trial and during plea negotiations.  One of the more interesting defenses, sometimes referred to as the “Twinkie” defense, has existed for a number of years.  It sounds patently silly on the surface given its name, but may actually have some basis in reality and, under appropriate circumstances, may be used effectively in cases involving criminal defendants with mental health issues.

The earliest notable use of the defense dates back to the trial of Dan White who was charged in the 1970s with shooting George Moscone, the Mayor of San Francisco, and Harvey Milk, a city supervisor.  Defense counsel presented evidence that White was mentally ill and depressed, and that his symptoms were worsened by eating junk food.  White’s “main” defense was actually diminished capacity, but he asserted that eating large amounts of junk food contributed to his existing mental health issues.  As ridiculous as it sounds, the argument apparently assisted him in obtaining a conviction for the lesser included offenses of voluntary manslaughter, instead of murder.

Variations on the defense have been asserted since the White case by defendants with mental health problems and issues.  In or around 2017, Matthew Phelps of North Carolina was charged with his wife’s stabbing death.  He discovered her blood-covered body on the floor when he woke up one morning, but had no memory of events from the prior evening.  He believed he attacked her, but claimed that he remembered nothing because cough medicine that he took to help him sleep caused him to black out.  Similarly, Dr. Louis Chen was charged with murdering his partner and their son.  He asserted that at the time of the murders, he suffered from depression and paranoia which were worsened by his ingestion of cough medicine.  James McVay, who claimed to have mental health and addiction issues, was charged with a stabbing death.  He argued, among other things, that at all relevant times, he suffered from hallucinations caused by mixing alcohol and cough syrup.  Shane Tilley, who presented evidence that he suffered from a schizoaffective disorder, argued that he stabbed someone to death while he was intoxicated by cough syrup.

Spin-offs of this defense include a bi-polar bus driver who argued that too much caffeine caused him to molest several women.  Other defendants with mental health issues have argued that consumption of MSG was responsible for their uncontrolled behavior.

It may not all be as ludicrous as it sounds.  Many cough medicines contain dextromethorphan, or DXM which, when ingested in sufficient quantity, can cause hallucinations and mania.  Indeed, cough medicines containing this ingredient have become a popular drug among teens.  Other studies show a correlation between soda consumption and violence.  In this light, the Twinkie defense may actually have some validity.

It is, however, important to remember that each of the defendants in the above cases argued that they had underlying mental health issues that existed independently of the problems resulting from the consumed substances.  Their attorneys almost certainly realized that an argument based solely on the Twinkie defense would not have created much traction, but arguing the defense in conjunction with other mental health issues allowed them to assert what was at least a somewhat respectable diminished capacity defense.  Put somewhat differently, the argument in each case appears to be that whatever substance the defendant consumed exacerbated their mental health problem(s), thereby causing them to engage in criminal conduct.  The argument has appeal but is obviously very fact-sensitive, and will not work in every case involving a defendant with an underlying mental health problem or issue.  Finally, asserting the argument successfully will involve significant credible expert testimony.

James S. Friedman, Esq., is a criminal defense attorney with offices in New Brunswick, New Jersey.  Mr. Friedman defends individuals charged with crimes in the Superior Court of New Jersey, the New York State criminal courts in Brooklyn and Manhattan, all federal district courts in New Jersey and New York City, and all New Jersey municipal courts.