The 65-year-old Florida man who claimed the impressive size of his penis was to blame for his girlfriend’s choking to death during sex has been found not guilty of second degree murder. Attorneys for Richard Henry Patterson had fought to let the jury see his manhood for themselves to prove his case — though a “viewing” never happened.
Indeed the size of Patterson’s penis was a significant issue throughout the case involving the death of 60 year-old Francisca Marquinez.
The claim that Marquinez choked to death while performing oral sex on Patterson was the focus of Patterson’s defense strategy through most of the week-long trial, but late in the case the defense attorney switched his emphasis to the possibility that Marquinez died of a heart attack or stroke that went unnoticed by Patterson as they had sex.
The penis defense, and then the subsequent doubt raised about another cause of death, were a successful effort to demonstrate that prosecutors had not made sufficiently made their case, which was dependent on the prosecution proving the specific cause and manner of death.
The county medical examiner had testified for the prosecution, saying the woman could have died from asphyxiation in the act. But the defense attorney kept hammering home that the woman’s death was undetermined.
And in potentially conflicting testimony, the medical examiner also testified that for the victim to have choked to death on Patterson’s penis, the organ would have had to have been lodged down her throat for two to three minutes. The examiner said that if Patterson’s penis was, in fact, obstructing Marquinez’s airway, there would have been evidence of struggle.
The uncertain nature of the death was the key to the ruling.
“This is not justice,” one family member called out.
Defense attorneys had previously argued, in vigorous fashion, that Mr. Patterson’s penis was relevant to his defense and should shown to the jury. While the prosecution insisted that if presented in court, the sex organ must be erect.
“Is it going to be erect, or is it going to be flaccid?” said Assistant State Attorney Peter Sapak. “Because the allegation is they’re having a sexual intercourse and I’m assuming the size of the penis does matter for the defense.”
The defense argued that, given that Patterson’s defense hinges on the allegation Marquinez gagged on his penis during a sexual act, the penis must be in an aroused state during the courtroom presentation.
The request to display the organ was never granted.
After the death of his girlfriend Patterson told his daughter in a text message that he “did something bad.” He later told a friend, “I choked her. I choked Francisca.”
“He said he choked her,” said Padowitz. “He never said he strangled her.”
Prosecutors also asked why Patterson did not call 911 after his girlfriend died. She had been dead for at least 24-hours when her body was finally found.
Separately, a British man, Philip Martins, attempted an identical defense in a 2011 murder case. He’s now serving a life sentence.
Penis size has been used successfully as a legal argument in other cases, albeit in the opposite way. Last year, the lawyer for a Canadian man accused of choking and assaulting two sex workers in 2013 claims that he could not have committed the crimes because his penis was too small.
The two women testified that Jacques Rouschop, who’s been registered as a sex offender since 2005, paid them to perform oral sex in the backseat of his truck. According to New York magazine, one woman said he kept asking her to take off her pants and when she refused, he put her in a chokehold and flipped her on her back, repeatedly asking, “Who’s in charge?” She said she couldn’t breathe and may have lost consciousness but didn’t think she was raped.
Rouschop’s lawyer argued that he couldn’t have penetrated the woman from behind because he has a large hernia which would have made that painful. Plus, his stomach is too big and his penis is “way, way too small.” The accused is five-foot-six and exceeded the weight of the scale at a jail.