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. The 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. (The Associated Press)

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.

Lawyer Walter Lesnevich claims that Ates, 62 at the time of the 2006 killing, was in such bad physical shape that he couldn't have pulled off the shooting or the fast getaway the killer made.

Lesnevich said his client's weight has led to 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.

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

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would have been impossible for Ates to clean up the shell casings and flee the house before police arrived minutes later.