A jury has been seated in the murder trial of a South Florida man accused of killing his girlfriend, but it remains to be seen whether jurors will get to look at his penis.
Richard Patterson, 65, of Margate, is charged with second-degree murder in the choking death of his girlfriend, Francisca Marquinez, 60, in 2015.
Patterson's attorney claims that his client accidentally choked Marquinez during oral sex. To prove it, attorney Ken Padowitz wants a Broward County judge to allow Patterson to show his penis to the jury.
Jury selection began Monday, and opening statements began Tuesday afternoon.
Assistant state attorney Peter Sapak said during his opening remarks that Patterson didn't call 911 right away and instead decided to communicate with an ex-girlfriend.
Patterson's ex-girlfriend was the first witness for the prosecution. Her testimony focused on a text message conversation that she had with Patterson shortly after Marquinez's death.
At one point during her testimony, she read a text message that she received from Patterson in which he told her that something terrible had happened and that he didn't know what to do.
Judge Lisa Porter heard from Padowitz and Sapak before Monday's jury selection as they debated whether Patterson's penis would be flaccid or erect if and when it is presented to the jury.
"Do we do it in the back? Do we do it in open court?" Sapak 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 chastised Sapak for jumping to a conclusion that the penis is relevant only 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. (Ronald) 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 in a motion filed earlier this month that he intends to call Wright, a former Broward County medical examiner, as an expert witness to testify that Marquinez's death "is consistent with being accidentally sexually asphyxiated during oral sex."
Padowitz said his client's penis 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.
Porter hasn't made a decision about Patterson's penis.