Over the years there have been a lot of strange defenses used in criminal cases. From Steven Steinberg claiming he’d murdered his wife while sleepwalking, to police officer Robert Torsney claiming that shooting an unarmed teen was an automatic reaction, murderers will try and use any excuse to get a lesser sentence. Yet perhaps one of the strangest murder defenses I’ve come across in my years of studies is the one that Dan White used in 1979 when on trial for the murders of Mayor George Moscone and San Francisco City Supervisor Harvey Milk, the Twinkie Defense. A controversial defense that lit the spark for riots across San Francisco, the case delves far deeper than simple sugary treats. The murders, the defense, and the sentence that followed ignited decades-long tension between the San Francisco police and one of the most vulnerable communities in the city.
The events that would lead to the double murder began a year before the incident, with the 1977 Board of Supervisors election in San Francisco. Dan White, a former police officer and firefighter, and Harvey Milk, the first openly gay elected official in the history of California, were both elected to the board. It was reported to be the most diverse board the city had seen. With the election, the board was split six to five towards more conservative members like White, with Mayor George Moscone being on the side of the more liberal members like Milk. This led to bitter debates and White would often verbally spar with some of the other supervisors including Milk. Tensions between the two sides only grew as Moscone’s agenda to revitalize neighbors and increase community programs were shut down by the more conservative side, while Milk voted in favor of placing a group home in White’s district. White later was the only vote in opposition to the landmark gay rights ordinance of San Francisco, which was passed in 1978. Growing increasingly frustrated with not only the workings of the city board but his also increasing financial troubles, White resigned from the board on November 10th, 1978. Alarmed over the fact that the mayor would appoint his successor, and thus tip the scales more liberal, White’s supporters pushed him to rescind his resignation while liberal leaders including Milk lobbied Moscone not to reappoint White. In the end, Moscone chose not to reappoint White and was set to appoint Don Horanzy, a far more liberal representative.
On November 27th, 1978, the day Moscone was set to appoint his replacement, White finally snapped. Arming himself with his service revolver from his days as an officer, he had a friend drive him to city hall. Slipping in through the first-floor windows to avoid metal detectors, he headed straight to Moscone’s office and requested a meeting. After Moscone’s current meeting had ended, White requested again that he be reappointed, a request that Moscone refused as their conversation turned into a heated argument. Rather than have the public overhear the argument, Moscone suggested they move the conversation to a private lounge. Once there, as Moscone poured drinks and lit a cigarette, White pulled out his revolver and shot the mayor. While, according to the coroner who autopsied the bodies of both victims, Moscone would have survived the initial shots to the chest, White then walked over and shot him in the head three times, killing him instantly. After reloading his gun over his victim’s body, White exited the room and intercepted Milk as White headed to his old office. Asking Milk to join him in the office, the moment the door was closed, White opened fire. The first bullet hit Milk in the wrist as White continued to fire, hitting Milk twice more in the chest, once in the head, and again in the head at a close range. White fled the scene as Dianne Feinstein, the President of the San Francisco Board of Supervisors, entered the room and found Milk’s body. She was so shaken that she reportedly needed support from officers to stand as she identified the bodies. While White initially left City Hall uncontested, he would later turn himself into his friend, Detective Frank Falzon, and would admit to the shootings but denied any premeditation.
Charged with first-degree murder, White’s defense team was quick to formulate a way to get the death penalty off the table. According to the defense, White was suffering from depression, which led to a diminished mental capacity and therefore made him unable to form any premeditation for the murders. They argued that various changes in White’s behavior were evidence of his depressed state, including changes in his diet. Despite what was later reported by the news, they never stated that it was the junk food itself that caused the shootings and only briefly mentioned Twinkies. However, inaccurate reports would state that the defense argued that the junk food was the cause of his mental state rather than a symptom. Either way, the jury accepted the defense and only charged White with voluntary manslaughter, the lowest charge available for the crime, and sentenced him to only seven years and eight months for the double murder.
Later referred to as “perhaps the most hated man in San Francisco’s history”, White’s conviction of voluntary manslaughter was not received well amongst the population of San Francisco, specifically the LGBT+ community. With a history of conflict with the San Francisco Police Department, it’s easy to see how the leniency with a former office only served to fan the flames within the community. On May 21st, 1979, the day the verdict was handed out and the day before what would have been Milk’s 49th birthday, an initially peaceful march began in the Castro District of San Francisco. Milk’s friend Cleve Jones, an activist for AIDS and LGBT+ rights and the man who created the NAMES Project AIDS Memorial Quilt, was the one who told the assembled crowd the verdict. Outrage poured through the crowd like gasoline on fire with shouts of “out of the bars and into the streets” as they headed down Castro Street. As they marched down the street, more protesters came pouring out of the bar, only adding to the crowd screaming for blood. By the time they reached City Hall, the crowd was now five thousand strong and the peaceful march soon turned violent as the LBGT+ community retaliated against what they saw as a conspiracy between the police and prosecution to grant White a lesser sentence. As the crowd started to tear off the ornamental work from the building’s doors to break the windows, many of Milk’s friends, including his long-term partner Scott Smith, attempted to hold back the crowd. Police didn’t hold back as they retaliated against the protesters, with over 140 injured during the riots. While the police were initially ordered to just stand their ground even as the rioters burned police vehicles, this tense stand-off was not to last. Reportedly covering their badge numbers with tape to prevent identification, the police moved in to attack the crowd. Rather than go quietly, the crowd fought back, one man famously shouting to reporters to “make sure you put in the paper I ate too many Twinkies” as he set a police car on fire. With this push back, sixty officers were injured and two dozen arrests were made, but the night’s violence wasn’t over yet.
After they had finished restoring order to the City Hall area, the police officers weren’t done with bloodshed. Rather, dozens of officers headed down to the Castro District, which was predominantly gay. There, not only did they attack gay people in the street indiscriminately, but they entered a gay bar known as the Elephant Walk despite orders not to. Shouting slurs and insults, they attacked patrons, shattering the plate glass windows in the front of the bar. While Police Chief Charles Gain reportedly tried to stop the violence, freelance reports would later publish a conversation with officers they found celebrating in a bar stating “We were at City Hall the day [the killings] happened and we were smiling then. We were there tonight and we’re still smiling”. As morning dawned on what would have Harvey Milk’s 49th birthday, leaders of the LGBT+ community, including Milk’s replacement, Harry Britt, made it clear that there would be no apology for the riots from the night before. That night, peaceful protests were held in San Francisco and Manhattan to protest the verdict and honor Milk’s life. In October of the same year, thousands of people marched on Washington for gay rights, a rally that Milk had once planned on organizing turning into a tribute to his life. In 1984, more marches were held as Dan White was released after only serving five years out of his seven-year and eight-month sentence. While state authorities feared someone would attempt to kill White, Milk’s partner urged people not to be violent as it wasn’t what Milk would have wanted. In the end, it didn’t matter. One year later, White committed suicide, leaving behind conflicting statements over whether or not he felt guilty for the murders.
Unfortunately, cases like Harvey Milk aren’t a one-time occurrence, even if the tactic the defense used was. While a lot of progress has been made to protect the rights and lives of the LGBT+ community, there is still a lot of work to be done when it comes to courtroom defenses. At the time of this writing, April 2021, only twelve out of fifty states have outlawed the gay panic defense. As the name suggests, this defense claims the defendant was in a state of temporary insanity during the assault or murder of a member of the LGBT+ community and therefore the act was committed in diminished capacity or self-defense. Also known as the trans panic defense, this defense has been used to try and escape punishment for attacks on LGBT+ people worldwide. With Virginia being the latest state to outlaw it in March 2021, we need to push harder to protect a vulnerable population from being attacked and murdered just for being who they are.
