Use what you got.  The  twinkie defense may not be much, but when there’s nothing else available to explain an aberrational killing, go for it.  Sure, people will make fun of you, ridicule your strategy, make you the poster boy for legal insanity, but what’s the alternative?

There is  some evidence that the “gay panic” defense was first attempted in 1987, when Joseph Mitchell Parsons, the Rainbow Warrior, claimed that he murdered Richard Lynn Ernest because of the shock caused by the latter’s homosexual advance.  It didn’t go well for Parsons, who was executed in 1999.

Then there was the Jonathan Schmitz, who killed his buddy Scott Amedure after the revelation on the Jenny Jones Show that the latter had the hots for the former.  That didn’t work out too well either.

Yet, the “gay panic” defense rears its fabulous head again, this time raised by former Times Square billboard model Ray Armstrong who strangled his long-time friend, Anthony Williams.  Strangulation is a particularly brutal, personal, way to kill a person.

Defense attorney Joseph Canuso said a defense psychiatrist had determined that at the time of the killing, Armstrong had a panic attack that rendered him “incapable of forming the specific intent to kill” and that the panic attack had been brought on by Williams’ “attempt to have sexual relations” with Armstrong.

Although it has no specific definition, the gay-panic defense typically rests on a defendant’s being so shocked by sexual advances from someone of the same gender that he assaults or kills the person. Canuso did not use the term “gay panic” in his arguments.

Is it possible that Armstrong was gripped by momentary psychosis, caused by a homosexual advance?  Sure. Why not?  When it comes to the strange stuff that goes on in a person’s mind, who is to say that it doesn’t happen.  The possibilities for bad things to happen in people’s heads seems endless.  But that doesn’t address whether a person’s panic at the homosexual advance of another constitutes a defense to putting one’s hands around a neck and squeezing.  Squeezing.  Squeezing.

The “gay panic” defense hasn’t always failed.  Joseph Biedermann was acquitted in Illinois for fatally stabbing Michael Hauser 61 times.  Of course, stabbing a person 61 times is an awful lot of time.  Far more than needed to kill someone (assuming mediocre aim), it reflects something awfully bad happening in the mind of the guy with the knife. 

One would suspect that somewhere during the course of the killing, the stabber would tire, take a breath, reflect on what he was doing, notice that things had gotten just a wee bit out of hand.  The claim was that Biedermann stabbed Hauser to stop his sexual advances.  It’s hard to imagine that Hauser hadn’t stopped of his own accord by, say, the 58th stab.  But Biedermann’s lawyer, Sam Adam, Jr., pulled off an acquittal, notably forcing the jury to decide between first degree murder and a walk. 

What makes the gay panic defense particularly troubling is that it smacks of validation of bias and hatred.  Hate gays? Well, here’s your chance to murder one and walk away.  Whether such hatred stems from latent homosexual feelings, societal prejudice, whatever, the idea that someone else’s sexual preference, even if acted upon (short of a rape), provides justification for killing them is anathema to most of us.  We won’t accept it as justification, and even if true, refuse to acknowledge its legitimacy.

Still, there is no question but that the defendant has a right to present a defense.  We may not like his defense, and may find it socially unacceptable, but the explanation for the conduct comes from the defendant, not our approval of the defendant’s conduct.  Does this right to defend extent to things we don’t want to accept as viable?  Assuming the defendant can prove, conclusively, that his conduct was the product of “gay panic,” then what?

If the court allows the defense to present any defense it can muster, even if that defense is an appeal to hatred and prejudice, it opens the door to more evils than one can imagine.  The religious fanatic can argue that the Bible says homosexuality is evil and most be wiped from the face of the earth.  The race-hater says black intermarriage is destroying our nation and he had to kill the black man with a white woman to save the America.  No matter how crazy or bizarre the claim, it would come down to whether the defendant believed it, and would entitle crazy people to act on their own crazy ideas.  The list of horribles is endless.

On the other hand, this may well be the cause of a killing, despite its intrinsic craziness, and should the decision of whether to convict or acquit fall to a jury rather than a judge who determines that nobody is going to argue in his courtroom that killing someone because of their sexual advance is acceptable?

While it may well be argued, let the defendant present any defense he chooses, and let the jury convict him for murder in five minutes.  Except, it may not happen quite that way.  It may be the jurors harbor similar bias, even if not to the same degree as the defendant.  It may be that the jurors find gay panic completely understandable, and the “choice” of being homosexual a risky, dangerous proposition.  The gay guy got what he deserved, in other words.  Don’t think any rational jury could think this way?  Don’t kid yourself.

Pennsylvania Judge Gwendolyn Bright will decide in advance of Armstrong’s trial whether she will allow him to argue that his killing of Michael Hauser was caused by gay panic, and thus that it constitutes a defense to murder.  Whether he ate a twinkie before the killing is not as yet known.

H/T Bad Lawyer