THE BLOG
12/23/2013 02:36 pm ET | Updated Feb 22, 2014

"Affluenza" -- The New "Twinkie"

In 1979, Dan White, a former San Francisco police officer, firefighter and city district Supervisor went on trial for assassinating Mayor George Moscone and Supervisor Harvey Milk. At trial, a defense psychiatrist testified about White's depression; that he had undergone behavioral changes -- quitting his job, shunning his wife and becoming slovenly. Previously a fitness fanatic, White began consuming large quantities of junk food and sugar laden soft drinks, a symptom, so argued his counsel, of his depression. A second psychiatrist testified that White had "exploded" -- that he was on a sort of "automatic pilot" at the time of the killings.

White didn't dispute the killings, but his team managed to convince the jury that White's capacity for rational thought had been diminished. Thus, the jury found him incapable of the "premeditation" needed for a murder conviction, and instead found him guilty of the lesser offense of voluntary manslaughter. The public rioted upon hearing the verdict. And in the wake, an imaginative reporter cleverly coined the means White's lawyers employed to accomplish the outcome: the "Twinkie defense." The "Twinkie defense," a phrase now recognized as a derisive label for an inventive, implausible legal defense.

It not only stuck, but Justice Antonin Scalia of the Supreme Court, never at a loss for words, actually elevated the "Twinkie defense" during oral argument in United States v. Gonzales-Lopez, 548 U.S. 140 (2006), stating: "I don't want a competent lawyer. I want a lawyer who's going to get me off. I want a lawyer who will invent the Twinkie defense... I want a lawyer who's going to win for me." Justice Scalia probably captured here the mindset of most people who need the services of a criminal lawyer -- a professional with an agile (outside the box) mind who can defy the tried and true defenses when they simply aren't enough.

And so now, so-called affluenza comes along, if you can believe it. affluenza? Yes, a defense psychologist testifying recently in Tarrant County, Texas, convinced a judge in a juvenile proceeding that Ethan Couch, a 16-year old who killed four people while driving with three times the legal limit for alcohol in his blood stream, was himself a victim -- the product of wealthy, privileged parents who never set boundaries for poor little (too-privileged) Ethan (call it "affluenza"), and gave him everything he wanted.

As proof, when Ethan was 15 years old, he had been found passed out in a parked pickup truck with a naked 14 year old girl -- with no punishment imposed by his doting parents. Reportedly, the psychologist testifying for Ethan expounded that a program of treatment, including no contact with his parents for one or two years -- rather than the maximum 20 years in jail the prosecutors asked for -- would turn his life around. And Judge Jean Boyd bought it! A teenager who killed four people and injured others would not spend a day in jail.

Sure, the parents do warrant an enormous amount of blame for Ethan's conduct leading to his not growing up. But is "no jail" -- literally, letting him virtually "get away with murder" -- the answer?

If you look at it from Justice Scalia's perspective, a defendant, or in the Couch scenario, the parents of the defendant, surely want all that can be done to be done -- that jail be avoided at all costs. And, in that sense, kudos to the (presumably) well-paid shrink who sold Judge Boyd on this dubious defense, or argument in mitigation. Actually, the syndrome, as it were, was first created (or concocted) by Jessie H. O'Neill in her seemingly self-published, 1997 book The Golden Ghetto: The Psychology of Affluence (she actually admits to diagnosing herself with having had the syndrome).

So, more likely, kudos to Ethan's lawyer who helped the psychologist articulate what was needed forensically to win the day. Many would say, a defense lawyer has "gotta do what he's gotta do." And if using a contrived defense will help save the day, he should do whatever is necessary to employ it (within the bounds of his ethical obligations, of course). Indeed, apparently, no less a light than Justice Scalia himself supports that philosophy -- he fully admitted in his characteristically blunt style, that he would want a lawyer willing to try virtually anything to aid his defense (should he ever need one).

But when defenses like these succeed, they are copycatted. If Ethan Couch can argue that he is the victim of bad parenting, why can't the murderer who was abused by his parents avoid jail time or even conviction? The lawyer, the expert -- they represent their client. But what of the courts? Until they wake up to the spuriousness of these arguments (by some, called "the blame game" -- and, for sure, many judges do and others ultimately will -- a number of pseudo-defenses, and, thus, defendants) will slip through the cracks or, better said, get past the goalie through the resourcefulness of a clever stick handler. The Dan Whites and the Ethan Couches of the world will be spared, and so might others who can hire the creative lawyer and expert. But when hearing these defenses, shouldn't the courts have an obligation to look ahead, to consider the precedent they will establish by crediting a defense which says, in essence, "my diet" or "my upbringing" made me do it?

If I needed such a lawyer's services, I too, just like Justice Scalia, would want a lawyer willing to pull out all the stops. But, a defendant in trouble with the law shouldn't be the one deciding what the law should be willing to countenance.