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

TRENTON, N.J. — A Florida man accused of killing his son-in-law in New Jersey is arguing that he was unable to commit the crime because he was too fat.

When Edward Ates takes the stand in his defense Wednesday, he's expected to tell jurors he wouldn't have had the energy needed to climb and descend the staircase where prosecutors say the killer was perched when he shot Paul Duncsak, a 40-year-old pharmaceutical executive, in 2006.

An attorney for Ates claims that in 2006, the 62-year-old who stood 5 feet 8 and tipped the scales at 285 pounds was in such bad physical shape that couldn't have pulled off the shooting or the fast getaway the killer made.

Ates' attorney Walter Lesnevich said his client's weight has caused Ates' asthma, sleep apnea and other obesity-related ailments.

"You look at Ed and you don't need to hear it from a doctor," Lesnevich said.

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.

"It's an unusual defense, but it would be a credible defense if the facts really fit in," Berg said.

"When the battered-wife defense was first used, it was considered abhorrent and bizarre," Berg said. "Jurors may be open to this in a society that talks about the infirmities that that obesity causes."

At the time of the killing, Duncsak and Ates' daughter, Stacey, were involved in a bitter custody dispute after their 2005 divorce.

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.