Author Archives: Brian Cavner

The New Mexico Human Rights Act, Gay-Wedding Photographers, and Anti-Discrimination Laws

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The New Mexico Supreme Court has ruled that an event photographer who refused to photograph a gay wedding has violated the New Mexico Human Rights Act.

Those who balk at anti-discrimination laws tend to feel that their freedom of association, or speech, or religion, or something else is in jeopardy when courts issue these rulings. There is always tension when one’s rights butt up against the rights of another. Nevertheless, courts have long accepted the idea that states can pass and enforce anti-discrimination laws without infringing on business owners’ rights.

Rather than substitute my explanation for the well-argued conclusion of the court, I give you Justice Bosson’s concurrence:

Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views.

On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.
Elane Photography, LLC v. Vanessa Willock via The Wall Street Journal

Criminal Justice as Entertainment: How ‘To Catch a Predator’ Is Predatory

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To Catch a Predator

To Catch a Predator Dateline NBC

The Dateline NBC show To Catch a Predator has not aired a new episode since December 2007, which makes my criticisms today both topical and timely.

The show, which is primarily about naked sex offenders being lectured in a kitchen, concerns me as an attorney in two ways. First, I’m bothered by a private organization – Perverted Justice, an Oregon non-profit with whom Dateline worked – appropriating the role of law enforcement.

Amateur vigilantes make mistakes police officers would not, or at least mistakes that state actors would be held accountable for. In Collin County, Texas, charges against 23 suspected sex offenders were dropped when Perverted Justice provided insufficient usable evidence. As explained by District Attorney John Roach, “the police department, the professionals weren’t in control of the entire operation. They weren’t calling the shots; somebody else was.”

Perverted Justice ostensibly provides training to its unpaid and unprofessional volunteers, though it should be noted that volunteers sign a non-disclosure agreement, making information about the instructions they receive difficult to find. Tragically, the same sting that yielded 23 dropped charges also resulted in one man’s suicide while NBC camera crews waited outside his home. This leads to my next point, and the biggest problem I have with To Catch a Predator: criminal justice as a source of entertainment.

Certainly these people should be prosecuted to the full extent of the law, but the fact that this was all done for television cameras raises some questions.
Murphy Mayor Bret Baldwin

To Catch a Predator could teach viewers that 90% of child sex abuse is committed by someone who the child knows. One-third of those perpetrators are family members [PDF]. Only 10% of sex abuse is committed by a stranger, a smaller percentage of which are strangers the child met on the Internet.

To Catch a Predator could teach parents about responsible Internet usage. It could provide information about how to set up Parental Controls, or impress upon parents the importance of monitoring their child’s online activity. It could help parents teach children how to have a healthy relationship with the Internet for the times when the parent is not available.

To Catch a Predator could explore sex offense laws and explain how and why the ‘age of consent’ exists. It could teach that a large percentage of rapists don’t know [PDF] that what they’re doing qualifies as rape.

But instead, To Catch a Predator is all about the spectacle. It’s about Chris Hansen naming and shaming near-naked men until the hidden cameras become not-so-hidden, and the perpetrator leaves into the waiting arms of a camouflage-wearing officer. It is not about education or awareness, but schadenfreude.

The criminal justice system is serious. It deals with a government empowered to take citizens off the streets, seize their assets, and imprison or execute them. This is an enormous power checked only by our guarantees of due process. Turning criminal justice into entertainment is an inappropriate use of this power. A prosecution should involve a professional police force and state attorney, not untrained vigilantes and a camera crew.

The Defensible ‘Twinkie Defense’

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No one (and certainly not me) ever testified that Twinkies turn you into a killer or that it did so in White’s case — doubtless if someone had offered that testimony, what jury would believe it (let alone twelve)?
Dr. Martin Blinder

The legal system is certainly not free from justifiable mockery, but what frustrates me is what people will mock despite not understanding.

The 1978 killings of San Francisco Supervisor Harvey Milk and Mayor George Moscone, and subsequent trial of their killer Dan White, caused the violent White Night Riots and more than three decades of the misleading and misunderstood term “The Twinkie Defense”.

Newspapers and commentators mocked White, his legal team, and the testifying psychologists for arguing that eating too many Twinkies contributed to the murders. Hostess’s 2012 bankruptcy encouraged even more tongue-in-cheek references to the defense, though it has been a constant meme since its creation:

  • ABC News in 2000, reporting on the stabbing of forensic psychologist Dr. Martin Blinder who testified for Dan White, recalled: “Blinder testified that a junk food diet of Twinkies and Coca-Cola contributed to White’s erratic behavior”.
  • Robert Kuttner of The American Prospect remembered similarly: “Lawyers for White claimed that he overdosed on Twinkies, and was acting under the delusional influence of a sugar high”.
  • In The Huffington Post, author Paul Krassner, who covered the trial in 1979, revisited the case by saying: “White’s defense team presented that bio-chemical explanation of his behavior, blaming it on compulsive gobbling down of sugar-filled junk-food snacks”.

Even lawyers who should know better are not above erroneously explaining the Twinkie Defense:

  • Cornell University’s Legal Information Institute says of White’s attorneys: “They claimed that a diet of only junk food had created a chemical imbalance in White’s brain (the “Twinkie defense”)”.
  • Nolo’s Plain English Legal Dictionary has an entry on the Twinkie Defense, where it explains “White claimed that the sugar high resulting from eating “Twinkie” cupcakes made it impossible for him to form the intent necessary for a murder conviction”.

The Real ‘Twinkie Defense’

If I found a cure for cancer, they’d still say I was the guy who invented ‘the Twinkie defense’.
Dr. Martin “Twinkie Shrink” Blinder

The difference between murder – what White was charged with – and voluntary manslaughter – what White was convicted of – is premeditation. If you consider that a crime’s punishment is proportional to a crime’s ‘badness’ (a defeatable presumption if you consider the sentencing guidelines for crack and powdered cocaine possession, but I digress), applying a harsher sentence to a premeditated murder makes sense. Someone who coldly calculates a killing is certainly more of a societal harm then a spurned lover who momentarily snaps, despite the victims being equally dead.

So since White was not contesting that he killed Milk and Moscone, the only question at trial was whether the killings were premeditated.

White’s legal team did not argue that White was motivated to kill by a sugary diet, but simply that his recent increase in junk food consumption was one of many symptoms of his depression. Along with this single symptom was evidence that White, who normally clean-cut and health-conscious, quit his job, fought with his wife, and began dressing slovenly.

The Twinkie Defense is not that White ate Twinkies and went crazy, but rather “look how many Twinkies he ate, he must have been crazy!”

Of course, despite this distinction, I join many people who still believe the jury was in error. Dan White went into City Hall with a loaded weapon and evaded metal detectors by entering through a basement window. I don’t share the jury’s reasonable doubt, but I also don’t share the jury’s 1979 mentality, where any excuse could justify killing a moderately tolerated gay man and his political ally, especially if the killer is a respected police officer and family man.

The Twinkie Defense is silly to be sure, but it should be criticized for the appropriate legal and historical reasons. Don’t become silly yourself by fuming at a Twinkie straw man.