Was Harvey Milk's killer really given a light sentence after claiming that junk food made him do it? Mike's spinoff podcast, Maintenance Phase, dives into the rumor and finds a very You're Wrong About twist.
Subscribe to Maintenance Phase here: https://linktr.ee/maintenancephase
Was Harvey Milk's killer really given a light sentence after claiming that junk food made him do it? Mike's spinoff podcast, Maintenance Phase, dives into the rumor and finds a very You're Wrong About twist.
Subscribe to Maintenance Phase here: https://linktr.ee/maintenancephase
Mike: Hello, welcome back to Maintenance Phase, the podcast where we talk about health, wellness, and not Doctor Oz, yet. But soon.
Aubrey: So soon, I'm so ready.
Mike: You know it’s coming. This is what the people want.
Aubrey: Yeah, that's right.
Mike: I'm Michael Hobbes. I'm a reporter for the Huffington Post, and the cohost of another podcast, You're Wrong About.
Aubrey: I'm Aubrey Gordon. You might know me as Your Fat Friend. I am a writer and a columnist for Self Magazine, and I am a fat lady about town.
Mike: Fat lady about town and self. A self, fat, town lady.
Aubrey: That’s right. That's how I prefer to be referred to. Can I tell you what we're going to talk about today, Michael?
Mike: Ooh yes, please do.
Aubrey: We are going to talk about the Twinkie Defense.
Mike: Yes!
Aubrey: What do you know about the Twinkie Defense?
Mike: So as a gay man, the thing that you learn about Harvey Milk is he was the first gay person to hold elected office in the United States, I believe. And he was murdered by his fellow city council member in San Francisco, which is just a bananas twist. And speaking of bananas, I guess, I'm sorry. The guy that killed him, named Dan White, I guess got acquitted or got a shorter sentence or something, because he said that the reason that he shot Harvey Milk was because he had like eaten too many Twinkies and his blood sugar was low or something. It was like a weird temporary insanity defense, that in some way involved Twinkies. And this has always been seen as like a justifiable reason for people to be outraged. That is all I know.
Aubrey: That is so much more than almost anybody I've talked to in the researching of this episode.
Mike: Really?
Aubrey: Yes, and it is a really fascinating thing. When I've asked gay people, they're like, ooh, the Harvey Milk thing and when I asked straight people, they're like, I don't know what you're talking about.
Mike: Oh, interesting, okay.
Aubrey: When I ask straight people, who do know what it is, what I hear is that it's like, you know, basically an excuse for bad behavior. The idea is criminals are craven and they will say whatever they need to say to get off.
Mike: And it's like a stand in, to me anyway, for like privileged, white, wealthy people getting off on these just absurd defenses that would never fly if it was a low-income defendant.
Aubrey: You're totally right. Harvey Milk is the first openly gay person elected to public office. There may have been gay people before him. But it feels important to sort of like highlight where we are and locate this in sort of what's happening in gay communities in particular at this time.
Mike: What year are we now?
Aubrey: We are 1977, is when Harvey Milk is elected to office. In the fifties and sixties gay people have started to come out, right? Stonewall is in 1969. It is now eight years later. Gay people are much more out in the open, though still not totally. And there are these big, high profile political conversations happening about when and whether gay people are a political liability. So there's a huge debate happening sort of throughout the seventies about the equal rights amendment, which is the proposed constitutional amendment that never has passed, defining that woman are equal under the law. And there is a very big, very public conversation amongst feminists about can we or can we not include lesbians.
Mike: Oh, that doesn't remind me of any current debates going on right now.
Aubrey: One hundred percent.
Mike: I'm just going to sit here and read some magical realist children's literature that has nothing to do at all with this debate that was happening in the seventies.
Aubrey: The other thing that is happening at this time is that, you know, straight people start to get freaked out and they start to file these local and state level anti-gay ballot initiatives.
Mike: Anita Bryant, right?
Aubrey: Yes. Tell me about Anita Bryant.
Mike: Anita Bryant, who is a conservative Christian, starts putting measures on the ballot in, I believe it was Florida, basically saying that gay people should have no part in public life at all. And she loses, but that also gives her like a huge platform. And like she becomes a national public figure over this. And one of the main crusaders against gay rights, right?
Aubrey: Yes, totally. She was prior to her weird like sort of main career as like just an anti-gay lady. She was a singer who was sort of moderately popular in the fifties. She had also been the spokesperson for Florida orange juice. So there is like a bunch of weird orange centered gay activism that happens at the time.
Mike: Oh yes. I remember seeing this in my disco research that people stopped serving screwdrivers in bars because they wouldn't order orange juice.
Aubrey: And like gay people won't order orange juice. There's like a bunch of people who are like, it's sort of your political duty to boycott orange juice.
Mike: Hell yeah.
Aubrey: There's also at this time some free-floating anxiety about food and nutrition. The seventies are when carob comes onto the scene.
Mike: Oh, fuck you. We need to do an episode on carob, oh my fucking God. You have no idea how much fucking carob I ate as a kid. That's stuff is terrible. Oh my God.
Aubrey: Carob brand becomes a big deal. Yogurt gets way more popular.
Mike: I just got like a wave of trauma when you brought up carob.
Aubrey: Oh no, I'm so sorry.
Mike: As I mentioned, my mom was on diets my entire growing up, and so like a lot of her weird diet stuff bled into like what the family ate. So we would have carob brownies and there was like weird carob cereals and granola and stuff. And it's like pretending to be like chocolate, but it's bitter as hell. It tastes like a fucking shoe.
Aubrey: It tastes dusty. It somehow tastes dusty. Anyway, so that's also happening. The main context here though is San Francisco City Hall. So what we're going to spend like a weirdly fair amount of time talking about is the San Francisco board of supervisors. So San Francisco is both a city and county, which means that they have a different sort of structure than like a city council like other places would. They have this board of supervisors.
Mike: I know. I'm always so annoyed when the cities or states have to do something different. I don't know, it's one of those things where there's always someone who's going to pop out of a trashcan and be like, “Actually it's a Commonwealth”. I know I'm sure there's differences, but I've always been like that with San Francisco. That's me being a jerk and being bad, I'm sorry.
Aubrey: I also just like fall asleep halfway through explaining it to someone. I'm like city council, it is not a city council, (snoring). So, in 1977, the San Francisco Chronicle is reporting and they're sort of celebrating. This is the most diverse board of supervisors the city has ever seen. It's like a big deal. People are very excited about it, at least in the Chronicle. And there are three main figures that we'll talk about here. There are certainly more than that on the board of supervisors, there are 11 people on the board of supervisors, we're going to talk about three of them.
The main folks we're going to talk about are Harvey Milk, as we've discussed, who is a Jewish gay man, openly gay person. He's middle-class, he's a Democrat, he's a Navy veteran and he was sort of first politicized in his late thirties, which is about the time that he comes out, particularly around the police abuse of LGBT people.
Next up we've got Dan White. Dan White is on the city council. He is also white, he's working class. He's very religious, very Christian, and a Democrat as well. He is straight and married and a father. Dan White's campaign is predicated at least in part on opposing what he calls San Francisco social deviants. And he was a pretty devoted opponent of gay rights.
And the other thing to know about Dan White and sort of his approach to all of this, is that he is extremely, he is born of command control kinds of hierarchies. So he’s an army veteran as well. He is a former cop, and he is a firefighter at the time that he's elected to the board of supervisors.
Mike: So he's like the man in like three different ways, basically.
Aubrey: Totally. So he has to quit as a firefighter when he starts, because he's not allowed to have another municipal job while he's on the board of supervisors. So he quits his firefighting job even though it pays more, and he buys this fast-food place called The Hot Potato.
And then the third person we're going to talk about is George Moscone, who's also married, straight, and white, and a father. He is a career politician who's an attorney by trade, but who had already served in the state legislature. And was like, frankly, pretty radical. He was vocally very supportive of a 1977 direct action campaign by a bunch of disabled activists where they took over a federal building for a month.
Mike: No way.
Aubrey: People kept being like, “What are you going to do to take back this federal building?” And he was like, “Not much. It seems like they're doing the right thing.”
Mike: He's like, I'm going to send donuts, I'm going to order pizzas.
Aubrey: He also appoints a bunch of firsts. He appoints the first black man, or the first black woman, or the first white woman, or the first gay person, to a ton of stuff. And in an interesting little twist, his campaign for mayor actually has a bunch of volunteers from The People's Temple.
Mike: The Jonestown people?
Aubrey: Mhmm.
Mike: No way!
Aubrey: So, Jim Jones is a big fan of George Moscone, which is a weird wrinkle to this. And we'll get there.
Mike: Foreshadowing.
Aubrey: So initially these three all work pretty well together. Harvey Milk goes to Dan White's kids' baptism. Tension begins when the Catholic church in San Francisco proposes opening a group home. So, a facility run by nuns, it's designed for youth in the criminal justice system, and they want to put it in Dan White's district. Harvey Milk supports that proposal.
Dan White does not support that proposal and it gets weirdly contentious weirdly quickly. So, Dan White also around this time, this was like 1977, 1978, opposes a statewide anti-gay law. So, he's on the right side, right, as far as I'm concerned as a gay person, right? Like he's on the right side. But then he goes back to the San Francisco city council, which is our, excuse me, God damn.
Mike: Oh my God.
Aubrey: The San Francisco board of supervisors.
Mike: See, I'm making the Baja cool fingers, just be a city council guys, this is what you could avoid.
Aubrey: So then the San Francisco city and county board of supervisors are voting on their first non-discrimination ordinance. So an ordinance saying you shouldn't be able to fire someone just because they're gay or just because you think they're gay. Dan White is the only opposing vote.
Mike: Okay. So he's on the right side of the debate at the state level, but on the wrong side at the city level.
Aubrey: It's very strange. I couldn't find anything that squared those two positions.
Mike: Could it be that he doesn't actually vote on the one at the state level? So like he doesn't lose anything by opposing it. Like he could have just been doing it for popularity reasons, I don't know.
Aubrey: It could totally be a publicity opportunity. Where you can sort of say something stirring, and that sounds egalitarian without actually having to have that on your voting record. So, in addition to all of that, Dan White is like very, he calls himself pro-growth, which means he is in favor of a pretty aggressive approach to developing the city, which also sounds familiar to now, right?
Mike: Well, this is interesting because the boards of supervisors at the district level basically made it illegal to build any housing, even while the city was adding jobs. As much as I hate to say it, that's actually one where, like I agree with Dan White. I agree with the Twinkie burger, I'm sorry.
Aubrey: There will be a number of times in this story where you're like, uh oh, I kind of sympathize with Dan White.
Mike: Yeah, but that's good, history is supposed to make you feel weird.
Aubrey: That's right, history is supposed to make you feel weird. So there's this big sort of contentious debate around housing and what the city should do about housing. Harvey Milk and George Moscone both feel like they should take this neighborhood focused approach to development that they should stunt the city's growth in these ways.
Mike: You're looking at them from the future, like, no.
Aubrey: Yeah, totally. The debate is contentious all the time on the city council around this particular issue but when Dan White gets involved, it gets really acrimonious and kind of personal. And he repeatedly gets into multiple shouting matches in council chambers, or board of supervisors. I don't know what you call it if it's the board of supervisors and I hate it. So, all of this happens, there's all this tension. Dan White decides to resign from the board of supervisors.
Mike: Oh, over the housing issue, or just like in general pissed off.
Aubrey: Just in general, pissed off. He's like, God, I couldn't keep my old job, which paid more. I'm trying to work multiple jobs now. It just generally sounds like a stressful thing, and he sounds generally very unhappy by all accounts. So, he resigns on November 10th, 1978, under the city's procedures that means that Moscone gets to appoint, his interim replacement that also gives Moscone the power to appoint someone who supports his vision on development.
Mike: Yeah. This is a no brainer. You're going to appoint somebody who votes with you 100% of the time.
Aubrey: And Dan White is kind of the fly in the ointment, right? There's way more alignment on the board of supervisors without Dan White than there is with Dan White. Folks hear that Dan White has resigned, and a bunch of people get really freaked out. The people who get freaked out that Dan White is leaving the board of supervisors are a bunch of business leaders and business associations, the board of realtors.
Mike: Right. Because they want to build housing.
Aubrey: The police union is also very freaked out because they had a cop on the board of supervisors and because there are these very public clashes between gay people and police.
Mike: Man talk about a powerful coalition dude, real estate agents and cops. Those are like the two bread and butter city constituents, man.
Aubrey: It's also just a real hellscape you know what I mean? They're totally bread and butter folks, and they're also for folks who are familiar with like city and local politics. You know that those are two groups of people who often do whatever they feel they need to do to preserve their own wealth and stuff.
Mike: Right. So, they must absolutely hate Dan White because he's given up, he's like flipped a vote on the board of supervisors.
Aubrey: Yes, yes. Yes. So, a couple days later, lobbying groups essentially talk to Dan White and they're like, you need to un resign.
Mike: Oh, okay.
Aubrey: You need to rescind your resignation, so he does.
Mike: You can do that?
Aubrey: He gave it a shot. So, he goes back to Moscone and says, I'd like to rescind my resignation. Moscone says, give me a minute to think about it.
Mike: He has a carob brownie as he thinks about it. And then it puts it in such a bad mood.
Aubrey: So Harvey Milk lobbies Moscone really hard to keep Dan White off of the board of supervisors. And he actually kind of threatens Moscone. He says, if you reappoint Dan White, you are finished in the gay community, and we won't even let you get elected dog catcher.
Mike: Nice.
Aubrey: It gets so heated at one point during the sort of waiting period of about 10 days that Dan White actually reaches out to an attorney and files for a court order to keep Moscone from appointing a replacement. And the court denies him that order because they're like, you quit your job, dude.
Mike: It seems like everyone is kind of within their right to withhold this from Dan White.
Aubrey: Yes.
Mike: If you quit and then people who rely on you for their material benefit, want you to un quit, it is not like you quit cause your wife had cancer and then like she miraculously recovered and you're like, oh, I want my job back, oh, okay. You left and then people who would benefit were mad and then you came back. It is not like a story of like values necessarily.
Aubrey: So, the big thing I should say about the housing stuff that they're debating at this point is, Dan White supported this proposal that would essentially allow anyone who has owned real estate for 10 years to sell it without paying tax.
Mike: Oh, that's bad.
Aubrey: Oh, it's super bad, it is like some Lex Luther shit. So that's part of the big debate that's happening on the board of supervisors and you can imagine realtors are like jazzed. Eight days after White resigns, Jonestown happens.
Mike: Oh Fuck. Just throw that in there, just throw like a mass suicide in there, sure.
Aubrey: It's a huge deal and because Moscone had a ton of volunteers from the people's temple who worked on his campaigns. So, it, wasn't just a sort of, this is a big event in the city. It was, you know, something that I think personally reached a number of folks on the board of supervisors.
Mike: They were like in the fabric of the city's politics, yeah.
Aubrey: After sort of the dust settles a couple of days after Jonestown, Moscone decides to appoint someone who had been on Harvey Milk's shortlist, who was significantly to the left of Dan White. So, on November 27th, 1978, Moscone is scheduled to announce the appointment of Dan White's replacement at city hall.
That day, Dan White has a friend drive him to city hall. He has his old service revolver with him, and it is loaded with hollow point bullets.
Mike: Oh, the exploding kind, the really ugly kind.
Aubrey: Uh, huh and he has another 10 rounds in his jacket.
Mike: Oh, wow.
Aubrey: I say all of this not to get into gory details of murder, but like this all speaks to me to premeditation. He also enters through a window in the basement so that he doesn't have to go through the metal detectors. He enters through the city soil lab and one of the lab techs is like, ah, hi, why are you climbing through a window? And he's like, oh, I'm on the board of supervisors and I forgot my keys. I forgot my keys at work so many times that I've never climbed through a basement window.
Mike: This is a little weird Councilman White. Also, can we have some of the dirt that's on your jacket, seems important to us?
Aubrey: We need to study that, thank you. So, Dan White confronts Moscone, they argue, Moscone offers him a drink. And when he hands him the drink, when he turns to hand them the drink, White shoots him in the chest. Once Moscone falls down, Dan White shoots him in the head twice and examiners later say he wouldn't necessarily have died, if it were not for the headshots.
Mike: Yeah. That's fucking brutal.
Aubrey: He then leaves Moscone’s office and on his way to his next destination, he runs into Dianne Feinstein who is also on the board of supervisors at this point.
Mike: Who is now the Senator from California, right?
Aubrey: Correct. And she says, oh, I want to talk to you. And he says, yeah, yeah, I'll totally talk to you, I have something to do first.
Mike: Oh my God, that's dark.
Aubrey: It is so dark.
Mike: It also speaks to premeditation. He clearly has like a to-do list.
Aubrey: Dan White then goes to Harvey Milk's office. He asked to speak to him. Harvey Milk invites him in. As soon as they're in, Dan White closes the door and blocks the exit, and shoots him five times.
Mike: Oh my God.
Aubrey: And as with Moscone, the last shot is to his head, and as with Moscone. The coroner concludes later that he wouldn't have died if not for those last shots in both cases. White then leaves city hall, he is not apprehended in the process.
Mike: So he just walks out of the building.
Aubrey: He just walks out of the building in broad daylight.
Mike: Gun back in the holster, walking out, just saunters out of the building.
Aubrey: Yeah. And he ends up later sort of down the line, turning himself in. Like he's not arrested at any point.
Mike: Interesting.
Aubrey: As he's leaving the building, Dianne Feinstein discovers Harvey Milk's body and there are actually like a bunch of descriptions of her trying to do city business and prep announcements while she is covered in his blood.
Mike: Holy shit. So she must've like gone to his body and like checked if he was alive.
Aubrey: Yes, totally. So that same night, there's an impromptu vigil at city hall. It draws tens of thousands of people. Joan Baez and Holly Near perform and the San Francisco Gay Men's Chorus, it's a whole thing. And within a couple of days, Dan White turns himself in to his former coworkers at his old precinct. Sort of takes his time and then he goes and finds his old partner from when he was a police officer. And tells him that he had also wanted to kill two more members of the board of supervisors too. He wanted to kill Willie Brown, who was a black man on the board of supervisors and Carol Ruth Silver, who was a white woman who had been a freedom writer. If he had completed his sort of list of murders, he would have killed an anti-racist woman. He would have killed a black man. He would have killed a gay Jewish man and he would've killed a straight Catholic.
Mike: Yeah. Jesus Christ. That's like collecting the whole set.
Aubrey: Yeah, totally. It just seems like he is someone who just in his heart of hearts was like an in cell before in cell and MRA before MRAs. He walked so that they could run.
Mike: It is also depressing. The whole kind of point of all of this is the idea that like being exposed to different viewpoints and different kinds of people makes you like more sympathetic to them. But he's like a weird example of like, no, you can, you can still have violence when you actually know people as people.
Aubrey: Yeah. There was that whole sort of era. This is the beginning of the come out, come out wherever you are, era of sort of gay rights activism. Which is like, everyone should come out and actually at one of the memorials, someone speaking there is an openly gay Rabbi, and he was like, it's actually everyone's responsibility now to come out.
Mike: That is the scariest possible time to come out as a gay person, until I tell your colleagues that you're gay. Because like someone just got fucking murdered by his colleague.
Aubrey: Totally.
Mike: But does Dan White have any history of violence, history of domestic abuse? Are there any other precursors? Because it's pretty wild to go from zero to like trying to kill four people so quickly.
Aubrey: It really is. And that actually gets into the trial, which is kind of perfect, thank you for the perfect segue. I have not seen any evidence of him having like a history of domestic violence, but also this is around the time that they're starting to define domestic violence in law and marital rape is not a thing yet. He also might have been doing those things and not been getting complaints because why would you complain if there's no law against it.
Mike: Right. And it wouldn't necessarily leave a paper trail either.
Aubrey: Totally. Dan White is taken into custody. He's charged with first degree murder and the city is full of these rumors that like there's a rumor that cops are letting him order takeout from jail. And there's a more substantiated rumor that they are actively fundraising for his Defense fund, which turns out to be true.
Mike: Oh shit.
Aubrey: So, it's like, not out of question that a former cop would get treated differently behind bars, but like mostly I sort of mentioned all of these rumors because they feel like an indication how much attention and pressure is surrounding this case.
Mike: I would be so much more sympathetic to cops, sort of like bad apples explanation for police wrongdoing. If they actually fucking threw the bad apples out of the barrel, when they found one, like, this is a pretty clear case of like a cop murdering two people in cold blood. And they're fundraising for his legal Defense. That is just like, it's so gross.
Aubrey: Totally. The Defense argument in this trial, the trial is like heavily covered. The Defense argument is called Diminished Capacity. The idea here, and the idea that they present to the jury is that he sunk into a very deep depression before he sorts of quote unquote snapped and that at the time of the murder, he lacked the capacity for rational thought. So, it couldn't have been premeditated, therefore he's not guilty.
Mike: But that's every murder. It's like the rich people, justice thing. It's like, yeah, he's at a diminished capacity, people don't kill other people unless they're at a diminished capacity. What's the murder in America that does not indicate a diminished capacity on some level? What the fuck?
Aubrey: Right. Everyone who murders someone has a diminished capacity for conflict resolution. So they bring in a couple of expert psych witnesses to testify around his depression. Both of them say that he was in major depression. He'd quit his job. His marriage was on the rocks. He was self-isolating. They also mentioned and a couple of character witnesses, like folks that he worked with mentioned that he was normally a real big health food and fitness guy.
Mike: Oh no, carob. Is Carob the Defense, oh shit?
Aubrey: Lower the carob boom everybody. So they mentioned that he's actually been eating a lot of junk food. And that he's not been, you know, as physically active as he was. And they're offering all of this up as like, these are all symptoms of depression, but when you look at the media coverage, it's very clear that the media has no idea how to talk about a man, particularly a white man, in a position of power having a mental illness.
Mike: So, it wasn't, he ate Twinkies and Twinkies are to blame. It's like he had diminished capacity in general. There are many things that indicate his diminished capacity. One of which is his over consumption of junk food.
Aubrey: Yes. That it is a symptom not the cause. The word Twinkies is spoken once in the trial. And during that one time, there is this journalist and comedian, he calls himself a satirical journalist.
Mike: Oh God, oh, Jesus. I don't like that at all.
Aubrey: So his name is Paul Krassner and he's one of the Merry Pranksters. And he goes to every day of his trial, and he writes about it. And he very proudly claims credit for coming up with the phrase, the Twinkie Defense. Some 30 years later he writes a book called, Patty Hearst & The Twinkie Murders. That's like part of the book is him being like, I came up with it, you're welcome.
Mike: But then it's also him bragging about misinterpreting the actual argument.
Aubrey: Yes, except to his point, he is a satirical journalist. Michael, I don't know where you missed it.
Mike: I feel like you can't just decide when like it counts and when it doesn't. Satirical journalist sounds like an oxymoron to me.
Aubrey: It is like a Zen cone to me. Like, what is the sound of one clapping and what the fuck is a satirical journalist, I have no idea?
Mike: I say is true unless I'm joking, but I'm not going to make it clear when I'm joking.
Aubrey: There's also like an air of like, hey, listen, man, if you don't get it, that's on you.
Mike: Yeah. Yeah. I guess you're square, man. I just said Twinkie Defense.
Aubrey: So this is like a pretty wild mis-characterization, right. Here's a quote, this is like kind of a long quote, from Paul Krassner's essay on this, The Twinkie Murder Trial of Harvey Milk's Killer.
“J.I. Rodale, health food advocate and publishing magnet once claimed in an editorial in his magazine prevention that Lee Harvey Oswald had been seen holding a Coca-Cola bottle only minutes before the assassination of President Kennedy. Rodale concluded that Oswald was not responsible for the killing because his brain was confused. He was a quote sugar drunkard. Rodale who died of a heart attack during a taping of The Dick Cavett Show. In the midst of explaining how good nutrition guarantees a long life, called for a full-scale investigation of crimes caused by sugar consumption.”
Mike: What?
Aubrey: In a surprise move, Dan White's defense team presented just such a biochemical explanation of his behavior, blaming it on compulsive gobbling down of sugar, filled junk food snacks. And so it came to pass that a pair of political assassinations was transmuted into voluntary manslaughter.
Mike: Is any of this true?
Aubrey: No, no. So weirdly this one paragraph from this one essay from this one, Merry Prankster, satirical journalist, becomes our public understanding of how this case happens.
Mike: But did no one point that out at the time. If this guy's self-identifying as a satirical journalist, it's not like it's hidden. So like, are people saying this at the time? Like, whoops, this is satire.
Aubrey: No, it also doesn't appear to affect the reporting. The reporting is generally pretty straight up. They're not reporters who are non-satirical journalists saying that you did it because of Twinkies, right? Like this actually seems to be the flash point and again, Paul Krassner seems more than happy to claim credit for it.
Mike: The problem, okay, I have a theory.
Aubrey: Yes, tell me.
Mike: The problem with satire of this form, is that for it to work, it has to be funny. The article that he wrote isn't fun.
Aubrey: Right. He shouldn't have been a Merry Prankster, he should've been a mildly amused Prankster.
Mike: Right, exactly. It actually reminds me of these online hoaxes that went around when Obama was president that every once in a while, there'd be a Facebook post that we get like 10 million shares. They would just say Obama plans on canceling all student debt. And then if you click through the post, it would be on some like weird publication that you've never heard of. And then down at the bottom, in really small print, it would say like, this is a satire, but like that's not funny.
Aubrey: Absolutely. It seems so disingenuous to me. Also, frankly, really bristle at a straight man covering a gay man's murder with such relish. That he really seems to be so into this role, it makes me feel gross. I don't have better words for it than that. Like, it feels really gross to have this person sort of very proudly claiming.
Mike: Right like this gestures eye view of like what a pretty serious thing is. And then just like publishing what amounts to like, not funny misinformation. What's interesting about this too, though is that on some level, he's correct, because this is a really disingenuous Defense, right. This isn't a Defense theory that I agree with it. It's not like he's defaming like an innocent person who was falsely accused of murder. He's defaming someone who's like is trying to get a lighter sentence due to pretty bullshit arguments.
Aubrey: Absolutely. And this also plays out in like public opinion, right? So, the verdict of the trial, I'll just skip ahead, verdict, Dan White was convicted of voluntary manslaughter.
Mike: Okay. Which is the non-premeditated one, right?
Aubrey: Yes, precisely. And he is sentenced to seven years in a state prison. He serves five of those. Many people at the time think that this verdict is a direct result of homophobia. They note, reporters note at the time that there are, you know, the jury is entirely white. It's mostly women and many of those women have kids that are about the age of Dan White's kids. So they're seeing him first as a father potentially, right. So of course, like queer people are extremely pissed off. And it's more than just queer people. It's the verdict is super, super, widely rejected. And in sort of the post-trial media, people are like, well, he got off light.
Mike: Right by the standards of American justice, yes.
Aubrey: Right. And this is also one of those cases where we have a justice system that produces one outcome and calls it justice, which is like, you go to prison. In the language that we have this is not great.
Mike: I always feel weird about being like indignant about short sentences. Because I basically think that everybody should get short sentences and that there should be options in the justice system beyond just locking somebody up in like a horrible place where they're going to get like raped and get diseases and not get medical care for like some period of time. And being like what an injustice, when it's just like a fucking seven-layer dip of injustice.
Aubrey: After the convictions too, it seems worth noting that this is about six months after the murders the conviction comes down. There are these things called the white night riots. Have you heard about the white night riots?
Mike: No.
Aubrey: These were like a really big deal in the community, and they are not particularly known by, I would say gay people under like 40.
Mike: I'm raising my hand right now, yes.
Aubrey: So White had originally been charged with first degree murder. He was only convicted of voluntary manslaughter and gay people straight up rioted. Not only was it that Dan White had killed Harvey Milk, the first out gay person, in elected office. Not only was it that he had had sort of overtly homophobic politics like confusingly, but overtly on top of all of that, he was also a cop and there were all these rumors about him getting this preferential treatment from the police at the same time as police brutality is like the issue for queer and trans people. So, him being a cop only sort of fuels the fire and as many riots, it started as a peaceful protest in the Castro, and then it turns to property damage. And most of that property damage happens at city hall, understandably. That same night, just a few hours after the rioting is broken up, the police then go into raid one of the most popular queer bars in the Castro.
Mike: Oh wow.
Aubrey: They show up in riot gear, they arrest two dozen people and they beat people in the bar with nightsticks.
Mike: No way. So it's just like retaliation upon retaliation. It's extremely clear what's happening.
Aubrey: 100%. This becomes such a big thing Dianne Feinstein runs for mayor. And this is a plank in her platform that she promises that she's going to appoint a queer friendly chief of police, which again only makes the police union matter.
Mike: Yeah, of course.
Aubrey: So we're about to get to part two of the story. I'm going to wrap up the Dan White part of this, and then there is a really fucking fascinating koda Michael Hobbes. I can't wait to tell you. So Dan White serves five of the seven years in state prison. He does end up moving back to San Francisco. He lives with his wife and kids for a while, but his marriage falls apart soon after, as you can imagine.
Mike: I mean, yes.
Aubrey: So eighteen months after being released from prison, he dies by suicide.
Mike: Oh, I didn't know this.
Aubrey: So this is where it gets really fascinating, I think. I am very notorious for telling people the same thing or the same story multiple times. I've told you one story in particular, like three times, I think.
Mike: Like every time we talked, yes, I know exactly the story you mean.
Aubrey: So I was talking to my brother yesterday about this and I was like, oh my God, I learned this, this and this. And like I told him something and he was like, dude, you genuinely told me that 10 minutes ago at the beginning of this call, can you not? So the outreach following Dan White's trial was so great that it gets translated into political momentum. Not just at the local level, but statewide. It leads to the architecture of what is one of the nation's first victims’ bills of rights.
Mike: Oh no. We did an episode on these.
Aubrey: Tell me what you know about victims’ bills and rights, like broad headlines.
Mike: The victims’ rights movement was born out of feminists pointing out correctly that the justice system did not take victims of sexual assault seriously at all and treated them like shit. But over time, this correct critique of the justice system was used as an excuse to over criminalize and mass incarcerate, a shitload of people that had nothing to do with sexual assault of women. It never really solved the problems of like police incompetence or police indifference that were actually at the heart of this problem. It just ended up being another vehicle to lengthen sentences and make the justice system more retributive.
Aubrey: 100%. So, the thing that this sort of hooks into with victims’ bills of rights, it's not about sexual assault and actually I went back and found the text of this was proposition 8, weirdly fittingly proposition 8, 1982. I went back and looked at the text of the law. There's not anything about sexual assault. So like Dan White's trial happens. He sort of starts serving his prison time, this political momentum builds. They start building the victims’ bill of rights while all of that is happening and they're trying to get it on the ballot. John Hinckley's murder trial happened, or attempted murder trial happens.
Mike: That's the guy who tried to kill Reagan, right?
Aubrey: Yes. He said he shot Reagan to impress Jodie Foster. By all accounts, Hinkley is like having a major break with reality, but people are so mad, he's not actually convicted. He's found not guilty by reason of insanity, and he ends up getting mental health care.
Mike: Yeah. America does not like that.
Aubrey: No, no, no, no. So that only fans the flames of one particular part of this victims’ bill of rights, which is they essentially make it next to impossible to file a Defense that's not guilty by reason you've been sanity or diminished capacity. That is a big chunk and it's one of the leading factors in this victims’ bill of rights. It's discussed a ton in the voter's pamphlet. This is what allowed Dan White to get such a short sentence. This is what allowed John Hinckley to get off so easy and it's also the beginning of a ton of tough on crime rhetoric. There's actually a 1979 opinion piece in a law review of the Glendale Law Review and the title, The Diminished Capacity Defense in California, An Idea whose Time has Gone?
Mike: Oh man, we love headlines with question marks on the show.
Aubrey: We've done three episodes and we have two of them with question marks.
Mike: Is the justice system too easy on everyone? Question mark.
Aubrey: So this law does a bunch of stuff. One, there's a sentence in the text of the law that says, “the defensive diminished capacity is hereby abolished.” That in and of itself is like, good God, get me out of here.
Mike: This is such a Hallmark of tough on crime policies that it's basically trying to collapse the context. You're stripping away, the context that you would need for understanding why somebody committed a crime, right? Like you could argue that like an abused woman who murders her husband, you could say she has diminished capacity because of the years of abuse, even if she wasn't under direct threat, but this is the kind of thing that would remove your ability to do that.
Aubrey: Yeah. That's only one of the many aspects to this terrible law. So, what you're talking about, the sort of like removal of discretion also happens around judicial discretion, right? Prop 8 introduces a five-year mandatory sentence enhancement for what are called habitual criminals.
Mike: Oh shit.
Aubrey: So, it establishes the idea that if you've committed multiple crimes, you are now this separate class of habitual criminals, and you should have more prison time.
Mike: God just say black people. It's very obvious what they mean with these laws, right?
Aubrey: Totally.
Mike: Because the extent to which you're a quote unquote habitual criminal is based on like how much surveillance by the cops you receive. A lot of white kids who are like habitual shoplifters, habitual drug users. Those people don't look to the system like habitual lawbreakers, because they weren't caught for those things because their neighborhoods aren't over policed. There's only one extremely predictable outcome of laws like this.
Aubrey: It's just a shit sandwich. It's such imprecise thinking. It is just sort of taking a hammer, using a hammer as a flyswatter. What's that expression?
Mike: Whatever it is, I like yours better. Sounds good. You nailed it.
Aubrey: So it also establishes of victims of crime to address the accused in open court.
Mike: Yeah. That's another victims’ rights, sexual assault one.
Aubrey: You're welcome to the writers of law and order from the state of California.
Mike: This is another one where like on some level I get it right. Like, remember the lady who was raped by the Stanford swimmer guy, and she gave this like extremely moving account of how it affected her. But on the other hand, it's basically an attempt to bring more emotion into courtrooms, which manipulates juries into longer sentences.
Aubrey: Totally. And it sort of continues to set up this dynamic of, we will empathize with victims of crimes at all costs, and we will absolutely never empathize with perpetrators of crimes.
Mike: Dude, can I tell you, at the beginning of quarantine, I got my bike stolen from the basement in my building. And the only time that I was contacted by the police about this was when they asked me if I wanted to make a victims’ impact statement, like a written document about how losing my bike affected me. I have insurance, I got a new bike. It really didn't affect me that much. But like, I'm now being invited to manipulate the court about it affected me so much not having a bike for four days until I ordered a new one on the internet. Why would that be brought into this process? It’s just completely absurd.
Aubrey: And also, as you were talking about, they invited me to submit a written victims’ impact statement. I was like, I just imagine you and Ken Burns Civil War style letter, like “My Dearest Martha, it's been months since I last had my bicycle.”
Mike: Dipping my pen in ink next to me, candles lit.
Aubrey: So here's some texts from the law itself, which I'm just like...
Mike: You love this shit.
Aubrey: I love it so much. I love it and I hate it all at the same time. When I was like, wait a minute, there's a hook into the criminal justice system. Let me take twice as long to research that as the actual twinkies, great. So this is where it gets twisty gross. A person may be released on his or her own recognizant and the court's discretion subject to the same factors considered in setting bail. However, no person charged with the commission of any serious felony shall be released on his or her own recognizance. Serious felonies include in the parlance of this law, rape, murder and attempted murder, arson, assault with deadly weapon, using explosive devices with the intent to injure, robbery, kidnapping, and there's something just called mayhem.
Mike: You did mayhem in the first-degree mayhem is like an actual crime.
Aubrey: You did mayhem and now you don't get bail anymore.
Mike: You mayhem all over me, this is bullshit.
Aubrey: Anyway, it passes, totally passes. Skip ahead. It passes. Surprise. That's why we're talking about it. So this was early in a wave of national efforts, right? Since then, 33 states have amended their constitution with some form of a victims’ bill of rights.
Mike: It's so bad.
Aubrey: It's so bad. It is a big part of the tough on crime sort of approach.
Mike: Under the guise of helping people. It's not actually designed to make anybody whole, and it's like very, obviously not designed for that thing.
Aubrey: That it's like a weird little coda to the Twinkie Defense stuff. It comes up one more time in high-level federal law stuff. There is a 2006 Supreme court case about whether or not defendants should be able to choose their legal counsel. And in what cases, they ought to be able to like fire someone or hire someone new or whatever. With regard to that case, Antonin Scalia, boom, get ready, it's going to be a gem. In that case says, quote, I don't want a competent lawyer, I want a lawyer who is going to get me off. I want the lawyer who will invent the Twinkie Defense. I would not consider the Twinkie Defense and invention of a competent lawyer, but I want a lawyer who's going to win for me.
Mike: I don't even know what argument he's making. Like what is the context?
Aubrey: The idea is that you should be able to choose your counsel at any point because you want the guy who is going to make shit up that no lawyer actually argued ever.
Mike: That is so indigenous. They use the Twinkie Defense to get a murderer, a shorter sentence. That's supposed to be something Antonin Scalia is against.
Aubrey: Right. Except there's this weird like, doesn't make sense about Scalia and also does, because there's also something about it that's just like free market. You should be able to hire and fire, whatever lawyer you want, whatever time, you know what I mean? Like get the best competition. You got to get the best service, blah, blah, blah.
Mike: I mean guess but isn't he supposed to think that's an injustice what happened with Dan White? Isn't that the whole premise behind these fucking victims’ rights laws? That like murderers are going free.
Aubrey: There's also no indication in this quote that he has any fucking idea what the Twinkie Defense actually is.
Mike: Yeah, exactly. Yeah, exactly.
Aubrey: So that's the other thing he's not thinking about Dan White. He's certainly not thinking about Harvey Milk.
Mike: I'm sure the footnote is not like based on a satirical journalists account.
Aubrey: So there are the things about the Twinkie Defense that really stood out to me as I was like, you know, pouring over the entirety of the story. Because it is a wild and rangy story and sort of has tentacles that reach out into a bunch of different things. One is like, of course it was never actually about Twinkies. It was about homophobia and mental illness and mostly it was about homophobia and sort of like being an aggrieved white man.
Mike: Yeah, and the way that the justice system will accept on their face specious arguments if the defendant is wearing a suit and has a good lawyer.
Aubrey: So, like on top of that, it pretty directly contributes to prison population growth. If you're making it this much easier to put people in prison, there will be more people in prison.
Mike: Right. These are entirely predictable consequences.
Aubrey: It's also becomes sort of this cultural meme, right? Like we were talking about earlier that plays into this idea that people who've been like when you are accused of a crime in that moment of being accused, you inherently become untrustworthy. You will start to shirk accountability. And that you are already guilty, right? That's sort of the idea here is like you are mounting a Defense, it is disingenuous. You can't be trusted because you're a criminal and criminals can't be trusted. It also, interestingly sort of perpetuates some weird half-baked kind of ideas and attitudes that we have around food. I was like, is there anything behind the sugar science?
Mike: Is it real Aubrey, did you find any evidence for this idea?
Aubrey: It's so fucking conflicted. I've got a bunch of stuff that was like, sugar makes you do crazy shit and a bunch of stuff that was like, sugar doesn't make any difference, but there is this sort of bizarre thing. There is a particular sub thread of that, of like does sugar cause crime and the answer there seems to very clearly be a no.
Mike: It has to be no, because the US population eats far more sugar in the aggregate than we did 30 years ago, and we have to far less crime.
Aubrey: Right. So, the interesting thing here that I find really fascinating, is that we've taken this thing that never happened, the Twinkie Defense, we've made it into a sort of cultural truism. And now we're using that truism to fuel our actual scientific research.
Mike: Right. Because the actual argument was never that the sugar made him commit the crime. The argument with the depression made him commit the crime.
Aubrey: I would also say on that note, like one of the best sources for that. There were two really great sources for all of this research. One was all of the original reporting from the San Francisco Chronicle was incredibly helpful. And the other thing was, there's a book by Lillian Faderman called, Harvey Milk, His Lives and Death. That is this really fascinating look at Harvey Milk as a deeply flawed person, and as all of these people as deeply flawed people.
Mike: And that conversation around sort of people as fundamentally flawed is a really important one for the criminal justice. And the effect of this, was it the criminal justice system, more and more pretended that that wasn't relevant at all. Was it just like, there's a different kind of person that commits crimes and we have to put him away forever? Rather than seeing everybody, including victims as flawed human beings.
Aubrey: The other thing that I would say about the Twinkie Defense that kind of made me sad is that it feels like it’s kind of has overshadowed this really important and really heartbreaking story about the assassination, the in broad daylight assassination of the first out gay person to serve in public office. But it does kind of stink as a queer person to read all of this and be like, oh, the thing we took away from this is a Defense that didn't actually happen and a joke about how much we don't like criminals. And we're all using it to side with law enforcement who were actively harming the people who got murdered.
Mike: Ballot initiatives are bad. Don't vote for bills that are named after dead people. And if anybody offers you carob, slap their hand away.