Tag Archives: Sean Penn

Civil Rights History: On This Day, Harvey Milk’s Killer Avoids Murder Charge Using “Twinkie Defense”

For the lesbian and gay communities, particularly in the San Francisco Bay Area, today marks a day in civil rights history which sparked great protests known as the “White Night Riots.” On May 21, 1979, former San Francisco City Supervisor Dan White was convicted of manslaughter for the premeditated murders of San Francisco Supervisor Harvey Milk and Mayor George Moscone.

In 1977, Harvey Milk, a prominent, gay businessman in the Castro District of San Francisco, won election to the city’s Board of Supervisors.  Milk’s election was the first time an openly-gay candidate won an office in the State of California.  Milk is pictured below in a photo taken in 1978 and courtesy of Wikipedia.

Alongside Milk served Dan White.  White was a conservative veteran and former fireman.  The relationship between the two officials was, at best, stormy.  The relationship began to sour further when White voted against a gay-rights ordinance sponsored by Milk.  The gay-rights ordinance did pass, however, despite White’s vote.

In November 1978, White resigned from the S.F. Board of Supervisors, claiming that he could not support his family on his salary.  George Moscone, the Mayor of San Francisco at the time, told White that he would reappoint him to the Board if White chose to come back.  Mayor Moscone is pictured below courtesy of Google Images.

Shortly after resigning, White did change his mind.  However, for reasons that are not entirely clear, Moscone did not reappoint White.  One argument that is proposed is that Moscone was under pressure from Milk not to reappoint White because of White’s no vote on Milk’s gay-rights ordinance.

On November 27, 1978, the day after Moscone’s refusal to reappoint him, White armed himself with a loaded pistol and went to City Hall.  He gained access to the building by entering a window in order to avoid a weapons check.  White then walked into Moscone’s office and shot the Mayor four times.  He then walked down the hall to Milk’s office, shooting Milk five times.  One gun shot was point-blank to the head and is depicted graphically in the 2008 movie, “Milk,” starring Sean Penn.

At White’s subsequent criminal trial, the defense argued that White had diminished capacity and, thus, could not have premeditated the killings.  The evidence offered for White’s depression was that he had been eating excessive amounts of junk food.  Seizing on this evidence, the media dubbed White’s defense, the “Twinkie defense.”  As a result of this defense, White escaped a murder conviction and was, instead, convicted of manslaughter.  He was sentenced to a mere five years, serving only two of them before returning to San Francisco and committing suicide.  White has been referred to as the “most hated man in San Francisco history.”

In 1982, under Proposition 8, and as a result of the negative publicity surrounding White’s case and others, the “diminished capacity” defense was abolished in the State of California.

Wikipedia has excellent articles about Harvey Milk, George Moscone, Dan White, and the “Twinkie defense.” If you are interested in this topic, I encourage you to check out those articles as a next step.  If you have not yet seen the movie “Milk,” then I most strongly encourage you to see it.  Sean Penn‘s portrayal of Harvey Milk, as well as Josh Brolin’s portrayal of the troubled Dan White, is a must see.  A word of warning, however – I personally found the end scene, the assassination of Milk quite haunting even though, from a graphics viewpoint, the scene is definitely not your typical Hollywood scene.  It is, in some ways, all the more powerful and disturbing because of that fact.

R.I.P. Harvey (May 22, 1930 – November 27, 1978).  We have not forgotten, and never will.

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Judge Tosses Child Sex Abuse Case, Citing Prosecutorial Misconduct

As reported this week in an article from Law.com, Santa Clara County, California Judge Andrea Bryan threw out a child sexual assault case, citing serious prosecutorial misconduct.  At issue in the case was the failure by the prosecution to make videotaped medical examinations available to the defense, as required by California law.

Judge Bryan characterized the case as a “rare and concerning case of egregious prosecutorial misconduct.”  She further described the Deputy D.A. assigned to the case as having committed “numerous acts of misconduct, culminating in his false testimony in this proceeding, strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed.”

A PDF copy of the judge’s order is in the Box for those interested in reading the full text.

Unfortunately, California has a long history of over-reaching by some prosecution officials in cases of child sex abuse.  In October 2009, Kern County, California D.A. Ed Jagels announced that he would not seek re-election in 2010.  Jagels was the subject of a 1999 book, “Mean Justice,” alleging that Jagels fostered a longstanding pattern of overzealous prosecutions.  And, to be sure, Jagels is proud of all the people he has locked up.  You can link to an article from SFGate.com in November 2009, discussing Jagels retirement, here.

However, it was Jagels involvement in a series of child sexual abuse cases in the 1980s that made him a household name.  The charges in those cases were monstrous.  Children alleged that their molesters drank blood, hung some children from hooks, and forced them to have sex with their parents.  Jagels and his prosecutors told jurors that the defendants murdered babies and took pictures of their deeds.

As a result of these cases, lives and livelihoods were destroyed forever.  The saddest postscript of all, however, is that California’s appellate courts and the state Supreme Court have since thrown out all of these cases – that’s right, all of them.  In one case under Jagels’ watch, People v. Pitts (1990) 223 Cal.App.3d 606, 273 Cal.Rptr. 757, the appeals court that threw out the convictions spent more than 100 pages detailing examples of gross prosecutorial misconduct.

Jagels’ child sex abuse cases were the subject of a documentary by Sean Penn entitled “Witch Hunt.”

In 1997, according to data compiled by Child Protective Services (CPS) 1,054,000 (about 15 out of every 1,000 ) U.S. children were the victim of some form of abuse.  Of that number, 8% were victims of sexual abuse. A PDF copy of child abuse statistics from Prevent Child Abuse America is also in the Box.  Readers are also directed to The National Center on Child Abuse Prevention Research for additional information and statistics.

Any form of child abuse is deplorable, and those committing it should be vigorously prosecuted.  Sexual abuse of children is certainly one of the most heinous crimes one can commit in any society.  However, what is equally heinous is the prosecution of someone for a crime as despicable and vicious as child sexual abuse when the accused did not commit the crime.

For many, what I just wrote might be hard to accept.  As an adult child of physical, non-sexual abuse by one of my own parents, I am no champion of the child abuser, I assure you.  However, I can honestly say that in my 12+ years of law practice, I know of no other criminal charge that has the power to destroy one’s life the way a charge of child sexual abuse destroys.  Consider the bitter divorce case where allegations like, “Johnny says that Mommy or Daddy touched him” is easy for one parent to raise, and horrendously difficult for the other parent to disprove.  Such allegations, when unfounded, often rob an innocent parent of custody or visitation – in many cases for years at a time – and further victimize the child by denying a relationship with the falsely-accused parent.

In criminal cases, allegations of child sexual abuse often take on a “guilty until proven innocent” quality not typical of other criminal charges.  Although the accused individuals in Jagels’ cases did, ultimately, prove their innocence, it took them 20 years to do it.  As Penn’s documentary makes clear, their lives, their children’s lives, and even their neighbor’s lives were all irreparably damaged by the misconduct of Jagels and his minions.

It takes courage for a judge to throw out a case the way Judge Bryan did.  It is never politically popular, and there is always a chorus of voice crying out that someone is “getting off on a technicality.”  Nevertheless, where the circumstances suggest prosecutorial misconduct, judges should act vigorously to ensure that innocent people are not wrongfully charged or convicted of unspeakable acts against children.

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