Florida man on trial for girlfriend's choking death seeks unusual defense

FORT LAUDERDALE, Fla. – Attorneys argued in court Monday over whether the penis of a South Florida man accused of killing his girlfriend should be shown to the jury in his murder trial.

Richard Patterson, 65, of Margate, is charged with second-degree murder in the choking death of his girlfriend, Francisca Marquinez, 60, in 2015. Jury selection in his murder trial began Monday.

Patterson's attorney claims his client accidentally choked Marquinez while performing oral sex. To prove it, attorney Ken Padowitz wants a Broward County judge to allow Patterson to show his penis to the jury.

"Dr. (Ronald) Wright, an expert witness and former Broward County medical examiner, will testify that … her death is consistent with being accidentally sexually asphyxiated during oral sex," Padowitz wrote in a May 1 motion to Judge Michael Rothschild.

Padowitz said viewing the penis is "material and relevant" because it "is essential for them to fully understand Dr. Wright's testimony and the defense in this case."

Rothschild said Monday that he was disappointed to learn of the motion through the media instead of receiving a courtesy call from attorneys. Rothschild also said he was compelled to find another judge to try the case because of Padowitz's motion for a speedy trial.

"There's no way this case is going to get tried in a week," Rothschild said, noting that he is scheduled to be out of town next week.

Just like that, Judge Lisa Porter found herself presiding over the case of the penis defense.

"I believe it's pertinent," Padowitz said of the jury's ability to view his client's penis. "I believe it's relevant."

Attorneys argue in front of Judge Lisa Porter whether Richard Patterson's penis should be shown to the jury in his murder trial.

The assistant state attorney said the state of the penis is pertinent to its relevancy.

"Is it going to be erect, or is it going to be flaccid?" the prosecutor asked.

He also wondered how it would be presented to the jury.

"Do we do it in the back? Do we do it in open court?" he asked. "How is the defendant going to be erect when the jury views it? Because a flaccid penis, whether it be a picture or the jury actually seeing it, is completely irrelevant. It needs to be erect."

Padowitz said he has already provided the prosecution with photographs of Patterson's penis, leading Porter to ask about its state.

"It's definitely not erect," the prosecutor answered.

Richard Patterson listens as attorneys argue about the penis defense in his murder trial.

Padowitz chastised the prosecutor for jumping to a conclusion that the penis is only relevant if it is erect.

"He's telling the court, as if he's a medical expert in his argument, that it matters whether the penis is erect or not," Padowitz told Porter. "But he's merely speculating here since he's never asked that question to Dr. Wright in definition, and he doesn't, obviously, know, actually, what the expert opinion is what is needed or not needed in order for a human being to choke."

Padowitz said his client was not measured by Wright, but he said he provided two photographs to prosecutors -- one of Patterson's penis next to a tape measure, and the other a frontal view of Patterson's naked body with his penis exposed.

"There's no surprise here," Padowitz said.