Legally Speaking: Some Defenses Never Rest

John G. Browning Dec. 21, 2010, 6:39am

In previous columns, I've written about some of the more creative and even outrageous defenses that lawyers and their embattled clients have employed over the years: the murderer who claimed "caffeine intoxication," the speeding driver who claimed he lost control of the car while dunking cookies in milk, and the tax dodger who claimed "fear of filing syndrome."

But if there's one thing we can always count on, it's that there will never be a shortage of bizarre defense theories and justifications offered by criminal defendants and civil litigants.

Sometimes, the best defense is also the "breast defense." In 2008, Japanese pinup model Serena Kozakura was charged with breaking into the home of a former boyfriend in order to confront him about cheating on her.

Even though she was convicted at trial, an appellate court set aside the conviction, thanks to a demonstration showing that the buxom model could not possibly fit through the hole in the kicked-in door due to her 44-inch bust. After the ruling, Ms. Kozakura said "I used to hate my body so much, but it was my breasts that won in court."

Many people love that "new car smell," but at least one person managed to use it as a legal defense. On July 3, Morgan Stanley financial adviser Martin Erzinger ran over Dr. Steven Milo as the anesthesiologist was riding his bicycle near Eagle, Colo.

Erzinger kept on going until he reached a Pizza Hut, where he stopped and called Mercedes-Benz roadside assistance to report damage to his car. He was initially charged with two misdemeanors and a felony charge of leaving the scene of an accident.

An accident reconstructionist expert hired by the defense says that fumes emitted from the upholstery of Erzinger's month-old sedan could have contributed to the accident. Erzinger purportedly suffers from sleep apnea, and the combination of that condition along with these "harmful and noxious gases" allegedly caused the financial adviser to doze off behind the wheel before striking Dr. Milo.

Although prosecutors initially cut a deal in which the felony charge was dropped, after public criticism the charge was refiled.

And if your car is too old to blame, there's always your toothpaste. Former Massachusetts State Sen. Anthony Gallucio pleaded guilty to charges of leaving the scene of an accident in 2009. He was sentenced to 6 months of home confinement, and ordered to abstain from alcohol.

Three days after sentencing, Gallucio tested positive for alcohol. Gallucio claimed that was due to his toothpaste, which allegedly contains sorbitol, a sugar alcohol and artificial sweetener. But a judge didn't believe "the toothpaste defense," and found the former politician in violation of his terms of probation, and ordered him to serve a year in jail.

A court of appeals upheld the revocation of probation, and Gallucio served about six months before being paroled. Maybe now he'll switch to Crest . . .

Meanwhile, being drunk was only the start of the driving problems for 41-year-old Mark Alan Watson of Oklahoma in December 2010.

His "defense" to charges of driving while intoxicated and leaving the scene of an accident? Mr. Watson is actually blind.

Of course, he didn't help his case by showing up to his court date drunk, and by falling flat on his face in the middle of the courtroom. He was promptly arrested again on public intoxication charges, thus giving new meaning to the term "blind drunk."

A man charged with drunk driving by Duke University police in October offered a more creative defense. Attorneys for Thomas Holloway filed an eight-page trial brief arguing that the campus police don't have the legal authority to make such an arrest, saying that Duke is a religious institution and that the university police department violates the separation of church and state.

Attorneys William J. Thomas II and James H. Monroe contended that two-thirds of Duke's Board of Trustees are elected by the United Methodist Church, and further pointed to the presence of Duke's Divinity School and Duke Chapel to reinforce their argument, along with quotes from Duke's bylaws which identify one of the school's aims as asserting "a faith in the eternal union of knowledge and religion set forth in the teaching and character of Jesus Christ, the Son of God."

The lawyers also pointed out similar cases involving schools that were found to be "religious institutions," like Campbell University.

Duke University representatives vehemently disagree, pointing out that, among other things, Duke doesn't even require students to take a religion course.

Finally, one of the most unusual defenses also turns out to be one of the most offensive. Forty-eight-year-old David Weaving of Waterbury, Conn., struck and killed 14-year-old Matthew Kenney on April 27, 2007.

Weaving, who had a record of five drunk driving arrests, was passing another car at about 83 mph in a 45 mph zone when he hit the teenaged bicyclist. In December 2008, a jury convicted Weaving of manslaughter, and he was sentenced to a 10-year prison term. In 2009, the boy's grieving parents, Stephen and Joanne Kenney, sued Weaving in Waterbury Superior Court for negligence.

Weaving, representing himself, has responded with a unique defense: blame the parents.

According to his counterclaim, the Kenneys were responsible for their son's death because they "allowed their son to ride his bicycle without a helmet and to play out in the middle of Rt. 69."

Weaving, incredibly, claims to have suffered "great mental and emotional pain and suffering" as well as the loss of his "capacity to carry on in life's activities;" he's seeking more than $15,000 in damages.

Joanne Kenney calls the counterclaim "unbelievable," and says "I just think it's crazy that they have the ability to do this behind bars."

Connecticut State Victim Advocate Michelle Cruz says, "Blaming the victim is just offensive. It takes obviously a very unique individual to go after the family of a deceased child."

Unique is one word for it. I have a few others, most of which can't be printed.

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