A brief history of the "short fat old man" defense

>> Thursday, May 19, 2011

The prosecutors say that Mr. Strauss-Kahn "forced" the complainant to have oral and other sex with him. How? Did he have a gun? Did he have a knife? He's a short fat old man. They were in a hotel with people passing by the room constantly, if it's anything like the many hotels I am in. How did he intimidate her in that situation? And if he was so intimidating, why did she immediately feel un-intimidated enough to alert the authorities as to her story?

Retired Comedy Central quiz-show host Ben Stein,
"Presumed Innocent, Anyone?" The American Spectator, May 17th, 2011

There are many fine, arcane points of the legal system as it has evolved in the United States from ancient roots in the English common law. Indeed, even fairly well-known elements of our laws, such as America's Miranda warnings and the insanity defense under American and British common law are widely misunderstood and might be described as "arcane." But one of the most fascinating, least-known and most-complicated points of American law is the short fat old man defense, which will be the focus of this blog post.

The short fat old man defense is what the legal system terms an affirmative defense. An affirmative defense, such as self defense or insanity, is one in which the burden of proof is shifted from the prosecution to the defendant. That is, in most instances the entire burden of proof is upon the state: for instance, if malice is an element of the crime, the prosecutor must prove beyond a reasonable doubt that the defendant acted with it, and the defendant is under no obligation to prove that he didn't (although he may present rebuttal evidence against the state's evidence if he wishes). In an affirmative defense, on the other hand, it is up to the defendant to prove all elements of the defense beyond a reasonable doubt: for example, if the defendant is arguing self-defense, he must prove all of the elements of self-defense beyond a reasonable doubt and the prosecutor is under no obligation to disprove anything (though he most likely will offer any evidence he has that rebuts the self-defense claim).

While the general public seems to think that affirmative defenses crop up frequently and are abused, the reality isn't nearly as clean-cut. Note that under the American system of justice, a defendant has a constitutional right to not testify. This may be a crucial tactic for a defendant--even a completely innocent one--who has a bad record that might turn a jury against him (the prosecutor might not be able to introduce the defendant's record at all unless he testifies, at which point the prosecutor might be able to ask the defendant about his past for impeachment purposes) or who might otherwise make a poor witness on the stand (perhaps he's of a nervous disposition, or suffers some disability that could lead him into confusion that a jury might mistake for inconsistency). Furthermore, and under many jurisdictions' procedural rules, a defendant may derive some tactical advantage from not presenting testimony (e.g. in some states, a defendant who doesn't present any evidence may get to make the final closing statement to the jury, getting in the last word on the case). But an affirmative defense necessarily requires a defendant to present some kind of evidence, and that evidence may be of a nature that only the defendant himself can offer; e.g. while an insanity defense might be presented entirely through experts with no direct testimony from the defendant personally, in a self-defense case only the defendant can testify he felt threatened by the alleged victim's actions (who else could say how the defendant felt?). This can create all sorts of tactical or strategic headaches for an attorney, and there are frequently instances where a viable self-defense claim (for instance) might appear less attractive than simply falling back on a defense based on deficiencies in the state's presentation (i.e. reasonable doubt).

A defendant who wishes to exercise the short fat old man defense must offer proof beyond a reasonable doubt of each of the following elements:

  1. He is short
  2. He is fat
  3. He is old
  4. He is a man

Failure to prove even one of these elements invalidates the entire defense. It is not sufficient to merely be a fat old man, for instance--you must also prove you are short. The fourth element of the defense remains controversial under contemporary Fourteenth Amendment Equal Protection and Due Process jurisprudence, but in all states with the sole exception of Washington, one must also prove beyond a reasonable doubt that one is a man; the fact that this is a nigh-impossible hurdle for around 50-51% of the population may explain why the defense has fallen off in popularity since the 1970s; furthermore, five states (Alabama, Georgia, Tennessee, South Carolina and Arkansas) have strictly construed "man" to be a male over the age of 18; meanwhile, Texas defines "man" as "a male of any age... who has completely consumed one serving of an alcoholic beverage, lassoed a steer or colt, and completed an act of fornication with an unrelated female of consenting age in a bordello... prior to entering matrimony" (c.f. Texas v. Jenkins (1938), in which a ten-year-old was found by the Supreme Court Of Texas to be a man for the purposes of the Texas capital sentencing statute despite stipulation by all parties that Mr. Jenkins had "[never] shaved his chin, which... remains softer than a lady's silk gloves...").

The first recorded instance of the short fat old man defense occurred in England in 1705, in a case called In the Matters of Huggins. The opinion is brief but illuminating--here we find it quoted in its entirety:

It is found forthwith: that he hath Such diminished Stature he doth not play at dice by Tossing but by putting his Back to work and with much Pushing and Efforts at last makes them to Move; that he hath such Breadth that he Must perforce Produce a most curious squeaking were He to perambulate Backwards; that he hath possessed such Advancement of Years that he must Meet his most Holy Saviour upon the Very Instant should this Court requireth of him upon his Honours that he must behave as if he Were another Whose age is Equal with his Own. A verdict is entered of Nonsuit and the Prisoner hereby discharged.

No less an authority than Blackstone would subsequently write:

It cannot credulously be thought that Higgins stands for the proposition that one's guilt or innocence may only be proportional to one's height, lest we conceive that no dwarf might be convicted of crime, however offensive he might be in the Creator's eyes. The matter of Higgins may only be comprehended in light of his diminutive lack of height in combination with the other factors perceived by the jurists in his case, to wit that Higgins was also more ancient and massive than other men in his jurisdiction.

While the definitive knowledge of his actions has been obscured by Time's uncertainty, we must also credit the notion that his alleged crime was unusually vile and must have been a capital offense, for it is only logical that Higgins' size & age made his hanging a terrible inconvenience or would have strained the backs of horses or the headsman. It might further be reasoned that his age was only an incidental matter of little bearing, mentioned solely because of the jurists' pity for this Higgins.

Blackstone's reasoning was partly accepted and partly rejected by American courts in later years. In Commonwealth vs. Stagger (1806), the Massachusetts Supreme Court agreed that hanging a short, fat man would be inconvenient, but added, "We cannot accept Sir William's argument that age is incidental to these matters, for we often find the elderly present complications to the judiciary, such as an inability to hear their last rites and a propensity for boring their minders with lengthy reminisces of how all situations were much improved in their all-but-forgotten youth." In 1852, in the much-cited case of Hormacher v. Gibbons, the New Hampshire courts gave Habeas relief to a prisoner who alleged that while he'd been tall, skinny and "in the prime of his manhood" at the time of his arrest, by the time of his sentencing he'd lost both legs to frostbite in his poorly-heated cell, gained a "substantial" (though unspecified) amount of weight from overeating because he had little else to do while awaiting the hearing of his case (and in any event could no longer pace his cell after the loss of his legs), and a great number of years had passed; Gibbons both confirms (in dicta) that all the American states at this time followed the Higgins rule and that the defendant's Article 15 right to due process and Article 18 right to proportional punishment under the state constitution had been violated by the trial court's refusal to allow Gibbons the benefit of the short fat old man defense. By 1907, most states had come to similar conclusions applying their own state constitutions, usually quoting the New Hampshire court's decision in Gibbons (sometimes in its entirety: the South Dakota decision State v. Murdoch (1942) indeed appears to be identical to the Gibbons opinion with the names, dates and fact pattern changed with a telling exception on the third page of the opinion, where the state is referred to as "South Hormacher").

Curiously, however, after 1932, defendants' appear to have relied less and less upon the defense, with only five cases (including the above-mentioned Murdoch) on record from 1932 to 1976. The most notable of those cases, a 1948 case out of New Jersey called State v. Odetti might illustrate the reason why. From an article in The Newark Star-Ledger (October 12th, 1948):

The dullness of the morning's proceedings was broken by the furor that erupted when Judge Hawkins inquired as to whether there would be any defense motions filed prior to jury selection. Mr. Robert Thompson, Mr. Odetti's counsel, stood and informed the court that while no pre-trial motions were planned, he wished to reserve the right to file further motions should new evidence justifying them appear during the State's presentation. The court agreed and asked if there would be anything else, and this was when Mr. Thompson dropped his bombshell.

"I wish to offer notice in open court," Mr. Thompson said, "of intent to produce proof that my client is a short, fat, old man."

Assistant to the District Attorney Arthur Grant appeared to expect the defense statement. Mr. Odetti, however, was apparently unprepared for his lawyer's announced strategy. He climbed onto the defense table using his chair for a stepladder and had to be brought down and restrained by three bailiffs and the clerk.

"I am not short and I resent being called fat!" the elderly defendant shrieked at the judge on the bench.

Judge Hawkins appeared unmoved. When order was restored to the court and a bailiff had restrained Mr. Odetti by sitting on him, the Judge quietly said: "This court takes judicial notice, sir, that you are short and fat. Your age will be a matter for the jury to decide upon. Restrain yourself or I will have the bailiff restrain you. Let the record reflect that notice of short, fat, old has been given by the defense in open court on this date."

Mr. Odetti could not be reached for further comment following the hearing, although reporters tried kneeling.

In 1976, attorney F. Lee Bailey attempted to argue during his closing in the Patty Hearst case that his client had been turned into "the psychic equivalent of a short, fat old man by the SLA's insidious brainwashing." The state's objection was sustained and Bailey's last-ditch attempt to sneak the defense in was abandoned. Some sources have claimed Bailey wanted to give notice of the defense during the O.J. Simpson criminal trial, suggesting that Simpson might be made shorter by the use of "some kind of prosthetic device or binding," but Barry Scheck's argument that the defense should focus on chain of custody issues and problems with the LAPD's collection procedures won out after a mock jury presentation suggested that jurors were likely to view Simpson as "I guess he's not that young, but he's a pretty big guy, isn't he?"

If Dominique Strauss-Kahn's attorneys follow Ben Stein's suggestion and run with a short fat old man defense, this may become one of the most exciting criminal trials in several decades. Strauss-Kahn is probably in the strong financial situation he'll need to procure experts on stature, weight and age. One expects, as well, that technological advancements will be brought to bear, with experts being called upon to explain concepts such as body-mass index (BMI) and possible state motions to have DNA testing performed to confirm that Strauss-Kahn is in fact an XY-chromosome male and not a sufferer of a genetic disorder such as Klinefelter's syndrome. The Strauss-Kahn affair might open a door into an exciting new realm of criminal procedure--or close an old one. We wait to see what happens with bated breath.


timb111 Thursday, May 19, 2011 at 10:13:00 AM EDT  

One point that you didn't cover was how "short" was to be determined. It is my understanding that since one is tried by a jury of ones peers that the height (or lack thereof) required to be considered short depends on the height of the jury. So while a 6'4" NBA player would be considered short, a 4' member of the cast of Little People, Big World would be considered tall.

Would you clarify?

Eric Thursday, May 19, 2011 at 11:06:00 AM EDT  

That's an excellent question! There's not a clear-cut answer, however; not only is there disagreement between various states, but even some state cases have gone both ways (e.g. the North Carolina Court Of Appeals found that height was a subjective measure in State v. Baldwell (1982) but later stated it was an objective matter in State v. Collander (1993) while somehow explicitly refusing to overturn Baldwell--this has obviously made a bit of a mess of things).

Another potentially interesting issue your question raises that's mostly been dealt with academically and hasn't been resolved practically is whether or not shortness is a suspect class for the purpose of Batson challenges. Is it unconstitutional for counsel to use peremptory challenges in a discriminatory way to single out tall people or short people for removal from a jury? The issue hasn't been litigated yet (so far as I know), but has been much discussed (c.f. G. Addams, "Short People (Ain't Got No Reason To Serve)", 162 Berkley Journal Of Criminal Law 211 (2003)).

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