Lawyer Says Florida Man Is Too Fat to Kill in New Jersey Murder Case

Defense: A 299-pound Florida man accused of murder was too fat to have done it.

October 29, 2009, 3:39 PM

Oct. 30, 2009 — -- An attorney for a Florida man accused of killing his former son-in-law is employing an unusual defense: obesity.

Edward Ates, who weighed nearly 300 pounds, drove from his Florida home to New Jersey where he allegedly shot and killed Paul Duncsak, 40, in 2006, prosecutors said. But defense attorney Walter Lesnevich told the court Thursday that Ates is not physically capable of pulling off the crime, citing the long drive and the stairs he would have had to climb and descend during the crime.

"You look at Ed, and you don't need to hear it from a doctor," Lesnevich said of Ates, who at 5 feet 8 inches tall, weighed 299 pounds at the time of the killing.

Ates' "morbid obesity" caused asthma, sleep apnea and other obesity-related ailments, Lesnevich said, adding that he's also a longtime smoker.

Duncsak was shot once in the leg at an upward angle before the shooter bounded up the four stairs and fired several more, highly accurate and fatal shots, investigators said.

Ates' doctor testified that running up those stairs would have taken a toll on a man the size of Ates, likely causing his hands to shake, making firing a gun accurately difficult.

He also testified there's no way he could have then driven 21 hours straight.

"He could go up four steps, but could he then maintain the pistol straight and not miss? That's a tough shot," Lesnevich told "Good Morning America" today. "It was more than 4 feet away."

Thursday prosecutors painted Ates as an experienced marksman with military experience.

Prosecutors played a wiretapped phone call in which Ates made calls to his sister in Louisiana after Duncsak was killed. In the calls, Ates goes over the timing of events with his sister. Ates' sister later testified that, at Ates' request, she had lied to detectives, telling them he was in Louisiana on the day of the killing.

Prosecutors said Ates planned the killing and researched with books and online.

The charges against Ates include first-degree murder, which is punishable by up to 20 years in prison.

Attorney: Sister Was Confused, Books Are Hobbies

Lesnevich contended that the phone calls between Ates and his sister only serve to prove she was confused about what day it was and Ates was trying to straighten it out.

The military experience prosecutors cited, Lesnevich said, was the 30 years Ates spent in military service behind a computer as a technology and linguistics expert.

"He is legally blind without his glasses," he said. "He could not be a combat soldier."

Lesnevich told "GMA" that Ates' supposed research into how to kill is nothing more than the hobby of a man with too much time on his hands.

"It's all circumstantial evidence," he said. "What do you have in your library? What do you have on your computer? He also bought a book on how to build a nuclear bomb. He didn't build one."

Lesnevich said he had an eyewitness who claims to have seen Ates in Louisiana on the day of the killing in New Jersey.

When he was killed, Duncsak and Ates' daughter had recently settled a bitter divorce. Prosecutors said tensions between Ates and Duncsak were strained.

On the stand, Ates said he had "no reason to want Paul Duncsak dead."

According to well-known Las Vegas attorney Conrad Claus, the obesity-based defense is risky.

"If jurors think you're treating them like an idiot, it's going to go really badly," Claus told ABC News.

But, Claus added, improbable defense strategies have worked in the past.

Unusual Defense Strategies Sometimes Pay Off

In 1979, a man was able to get his sentence reduced based on a sugary snack.

The so-called "Twinkie Defense" helped convict Dan White of voluntary manslaughter rather than first-degree murder in the killing of San Francisco gay activist Harvey Milk.

White's attorneys argued that he was depressed and therefore his capacity for rational thought was diminished. His consumption of sugary foods and his slovenly appearance were evidence of that depression, they argued. Although many considered the defense ludicrous at the time, the jury evidently disagreed.

Not long ago, battered women's syndrome was considered just another oddball strategy, Claus said.

"Nobody thought a defense where you argued that you could kill somebody in self-defense because they beat you up six months ago would go anyplace. Nowadays we accept it as a matter of course," Claus said.

In 2002, a San Francisco man who dismembered his landlady was found insane after claiming he was "sucked into the Matrix."

But Lesnevich told ABC News there's an important difference between his "too fat to kill" defense and the "Twinkie" or "battered women's syndrome" defense.

"They're saying this is what caused me to do it, this is my motivation," he said. "This defense is, 'I couldn't do it. ... This is a physical inability."

Another lawyer in Ates' defense, Michael Mildner, told ABC News the unusual strategy was simply logical.

"It's a defense that logically suggests itself from the facts of the case. It wasn't set out to be a novel defense," Mildner said.

A jury is expected to begin deliberating next week after closing arguments Wednesday.

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