Lawyer Uses "Blubber" Defense In Trial of Fat Man

AP
Too fat to kill? Fla. man uses weight as a defense

Oct 28 2009

By BETH DeFALCO - Associated Press Writer



Edward Ates is shown in this undated photo provided by his attorney and released by the Trenton, NJ prosecutor's office, Wednesday Oct. 28, 2009....



HACKENSACK, N.J.— A man accused of running up and down a flight of stairs to kill a former son-in-law is offering a novel defense: At 5 feet 8 and 285 pounds, he was just too fat to have pulled it off.

An attorney for Edward Ates is making the case that his client wouldn't have had the energy needed to fatally shoot Paul Duncsak, a 40-year-old pharmaceutical executive, from a perch on the staircase.

Houston defense attorney David Berg, author of "The Trial Lawyer: What It Takes To Win," an analysis of trial tactics and strategies, said that he had never heard of such a defense but that it could work.

Prosecutors claim Ates drove from Fort Pierce, Fla., to Duncsak's $1.1 million home in Ramsey, about 25 miles northwest of Manhattan, in August 2006 and shot him as he came home from work.

Duncsak was talking to his girlfriend on his cell phone when he entered the house and was shot. After hearing a scream from him, followed by a thud, the woman called 911. Police arrived minutes later, but the killer was gone.

Police quickly suspected Ates and found him 24 hours later at his mother's home in Sibley, La.

According to Lesnevich, the trajectory of the bullets shows that Ates wasn't physically capable of the shooting.

Duncsak was shot six times as he walked down a hallway. Lesnevich said the shooter first fired from a staircase leading to the basement. That was followed by several shots fired head-on. In order to do that, Lesnevich said, Ates would have had to run up the stairs.

Lesnevich also says it would have been impossible for Ates to clean up the shell casings and flee the house before police arrived minutes later, let alone to have driven alone 21 hours straight to his mother's house in Louisiana.

Duncsak's mother, Sophia, has said Ates became vengeful toward her son after Paul Duncsak refused to give his father-in-law $250,000 in 2003 to keep Ates' struggling golf course in Okeechobee, Fla., afloat.

Early in testimony Wednesday, Ates' doctor testified that bounding up the stairs would have caused Ates to become short of breath and shake, making it difficult to keep his wrist straight enough to accurately fire a gun at someone from a distance.

When Ates took the stand Wednesday, he testified that he often needed to take breaks while driving, implying that he wasn't capable of making the drive to Louisiana _ a trip prosecutors say was orchestrated to create an alibi.

"I can't drive too long," he said.

He also directly denied killing his former son-in-law, saying he had no reason to want him dead.

While obesity appears to be a rare strategy for a murder trial, the defense was used recently in Ohio by double murderer Richard Cooey, who argued that he was too fat to execute.

He argued that at 5 feet 7 and 267 pounds, his obesity made death by lethal injection inhumane because it would be difficult for prison staff to find suitable veins to deliver the deadly chemicals. There were no such difficulties when he was executed this month.