“Physically, he could not have done it,” said defense lawyer Walter Lesnevich about his 65 year old, 5’8,” 285 lb. client Edward Ates. Lesnevich says that the ironically-surnamed defendant’s obesity renders him physically incapable of murder. In other words, his lawyer maintains Ates is too-fat-to-kill anyone. Ates is accused of murdering his former son-in-law, Paul Duncsak.
Besides being morbidly obese, his lawyer says that Ates is diabetic. Lesnevich also adds that Ates suffers from sleep apnea, even though the prosecutor isn’t saying Ates was asleep when he allegedly shot Duncsak 6 times.
It used to be that people would stick up for an accused by saying of a mild-mannered defendant, “Why he’s so gentle, he wouldn’t hurt a fly.” Nowadays, especially given this case, it’s more like, “Why he’s so fat, he couldn’t hurt a fly.” Boy, how times have changed.
Lesnevich’s defense more specifically disputes the prosecution’s theory by arguing that the trajectory of the bullets and the abbreviated timeline of the crime make it virtually impossible for the obese Ates to quickly mount a flight of stairs and fire a gun accurately. The exertion alone would have caused his hands to shake.
A defense that’s been used before.
With most Americans now either overweight or obese, it’s not unheard of nor should it be surprising for defense lawyers to invoke an obesity defense. Indeed, Ates’ defense lawyer, like most of us, could stand to lose a few pounds himself. It’s likely he was understandably sensitized to a defense that his client’s weight would preclude him from doing everything the prosecution says he did. Therefore, given the prosecution’s theory and after assessing his corpulent client, it’s hardly a stretch for him to have considered such a defense.
Moreover, the too-fat-to-kill defense has been used before. For example, last year in Texas, 500 lb. Mayra Rosales was charged with killing her 2-year old nephew, Eliseo Gonzalez Jr. Because of her size, the 27-year old Rosales is bedridden and suffers from medical problems.
Consequently, it’s no surprise that Rosales’ lawyers argued that due to her size and condition she was too-fat-to-kill the toddler. An autopsy found that Eliseo had died from severe brain trauma and hemorrhaging caused by two blows to the head. The toddler had been left in her care.
The defense said Rosales is so fat she’s incapable of moving her arms. She couldn’t have struck the boy, they contended.
In a further unfortunate development, Rosales was placed under house arrest because the Hidalgo County Jail lacks facilities to hold someone of her size and physical condition.
Too fat to execute.
Coincidentally in a twist on the too fat to kill argument, a year ago this past month, a corpulent criminal on Ohio’s death-row unsuccessfully tried to avoid death by lethal injection due to his body fat.
5’7″ 267 lb. convicted double-murderer Richard Cooey argued that his obesity made execution by lethal injection cruel and inhumane because viable veins were hard to find due to his fatty bulk. Cooey had unsuccessfully asked for execution by firing squad.
Despite his argument, Cooey was executed after the U.S. Supreme Court denied without comment his too-fat-to-execute appeal. The State found viable veins after all and Cooey was executed by lethal injection without any complications.
Relevant to a defense.
The National Center for Health Statistics has previously reported that 1/3 of adults or over 72 million people are obese. It’s not unexpected then, that in that number of the obese are going to be persons charged and convicted of murder.
Rather than being novel, a defendant’s physical condition will always be a relevant consideration to his or her defense. And so the obesity defense will likely be used again as our national girth continues to expand.