Legally Speaking: A Poor Excuse for a Column

John G. Browning Jun. 24, 2009, 4:44pm

Ever wonder what became of that kid in class, the one who would always turn in his assignments with the latest in an ever-changing lineup of excuses for being tardy, stories that put the old "dog ate my homework" reason to shame?

Well, chances are he grew up and became one of those criminal defense attorneys who seek to push the envelope with either a bizarre justification for his client's conduct or the most preposterous-sounding alternative explanations for a victim's demise.

For example, who can forget "the Twinkie defense," employed by attorneys for former San Francisco Supervisor Dan White to mitigate his responsibility for the killings of Mayor George Moscone and Supervisor Harvey Milk?

Arguing that a steady diet of junk food had diminished White's mental capacity, the lawyers were able to convince a jury to convict White of involuntary manslaughter instead of first degree murder.

And in Miami recently, defense attorneys floated an interesting theory in defense of real estate developer Adam Kaufman, on trial for the strangulation death of his wife Eleanora in 2007. They suggested that a poisoned spray-tan solution was the culprit in the death of Eleanora (who had gotten a tan the day before she died), prompting her aunt to exclaim "It is a mockery. It's a shame the justice system has to listen to this."

The German poet Hebbel once wrote "Whoever wants to be a judge of human nature should study people's excuses." Indeed, for decades defendants and their lawyers have pointed the finger of blame elsewhere.

New York attorney William Kunstler offered "Black Rage Syndrome" as a defense for Colin Ferguson's murder of six passengers on a Long Island train. Kunstler unsuccessfully argued that anger over past racial injustice helped trigger Ferguson's emotional instability.

Similarly, in the 1994 murder trial of Daimian Osby in Texas, defense attorneys argued that their client suffered from "Urban Survival Syndrome," and that Osby's upbringing in a tough neighborhood justified his shooting of two men.

At the other end of the spectrum, lawyers have claimed that the cultural influence of wanting to climb the economic ladder of success – so-called "American Dream Syndrome" – explains why their clients turned to crime.

Even other cultures have been blamed as defendants sought to diminish their responsibility for crimes in the U.S. This "cultural norms" defense has been trotted out by a whole host of immigrants to explain that their illegal behavior here is actually permitted in their homelands, from the so-called "honor killings" of Islamic societies to spousal abuse in certain Asian cultures.

Sometimes, of course, the finger of blame is pointed at a certain aspect of popular culture. Purveyors of the "rock and roll" defense over the years have claimed that subliminal messages in music caused their clients to commit crimes.

From Charles Manson blaming the Tate-LaBianca murders on the Beatles' lyrics from "Helter Skelter" to teens claiming that heavy metal music from the likes of Judas Priest, Black Sabbath or AC/DC caused their crime sprees to today's accusations against gangsta rap, popular music has been blamed – usually unsuccessfully – for criminal behavior.

Repeated exposure to television and videogame violence have also been used as an excuse, as have sports. "Experts" point to what they termed "Super Bowl Sunday Syndrome" to explain a purported 40 percent rise in domestic violence that day, while in 1994 a wife who murdered her sports-obsessed husband blamed it on "Football Widow Syndrome."

Part of the O.J. Simpson trial discussed "Super Jock Syndrome," a term coined by the therapist who treated Nicole Brown Simpson to explain how athletes can be prone to violent eruptions and frustration after their glory days have faded into the past.

My personal favorites from what legal writer Adam Freedman has described as American law's "rich vocabulary of excuses" are the ones that aren't drawn from any cultural more or societal influence; in fact, they don't seem to be based on anything other than an individual's own poor habits or laziness.

In 1992, a court admitted "Chronic Lateness Syndrome" as justification for a Chicago schoolteacher's habit of arriving late (he was fired and was contesting his termination).

In 1994, lawyer Elliot Silverman and psychiatrist Dr. Stephen Coleman introduced the world to "Failure to File Syndrome" in an article in the New York Law Journal.

According to Silverman and Coleman, those who suffer from this purported affliction tend to be perfectionists who succeed in many other areas of life, but when it comes to taxes tend to have an inability to act in their own best interests while still having considerable anxiety over it.

Tax lawyers have invoked this excuse for years on behalf of clients, often successfully.

Not so successful recently with this excuse was Charles O'Byrne, a former top aide to New York Gov. David Paterson. His lawyer, Richard Kestenbaum, argued that O'Byrne wasn't trying to evade paying his taxes – he just happened to be one of those suffering from "Late Filing Syndrome," and that's why he had failed to file tax returns for five years.

So if you're looking for a legal excuse, there's probably one out there for you. Just attach the word "syndrome" (from the Greek words "syn" – "together" and "dramein" – signifying "to run") to whatever activity or condition you're trying to excuse.

The Greek roots of the word just might offer a bit of foreshadowing, however.

Let's face it, until someone comes up with "Lame Excuse Syndrome" (the tendency to blame one's faults on anyone or anything but oneself), you might be better off running away than trotting out one of these pathetic attempts at justification.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

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