Arguing that Superior Court Judge Steven Z. Perren erred in an admonishment to jurors this week, attorneys for convicted killer Michael Raymond Johnson are demanding a mistrial.
But prosecutors say the judge made the right call when he told the jury to disregard an emotionally charged question posed by the defense.
The motion--which comes just days before the conclusion of the penalty phase of Johnson’s trial--is expected to be argued Monday. Johnson, 50, faces possible execution for fatally shooting Ventura County Sheriff’s Deputy Peter J. Aguirre Jr. in July 1996.
At issue is whether Perren made a mistake when he instructed the jury to ignore a question posed Tuesday by Deputy Public Defender Brian Boles. Boles had asked the defendant’s mother whether she wanted to see her son receive the death penalty.
“Of course not,” Wilma Johnson responded quietly, her voice drowned out by an angry objection by the prosecutor. Perren quickly ordered the jury from the courtroom.
“That’s misconduct,” Deputy Dist. Atty. Matthew Hardy told the judge.
“It is,” Perren agreed. “That’s an improper question.”
Case law clearly states that such a question is not permissible during the penalty phase of a murder trial, the judge said. He quickly fashioned an admonition to the jury.
“You are specifically and in the strongest possible terms admonished to disregard the question last asked by the defense counsel of this witness and the reply she made to it,” Perren said.
The law is clear, he said: The expressed feelings of the defendant’s family are not to be considered when weighing punishment.
“The family of Deputy Aguirre did not and could not express its desires and respected that rule of law,” the judge said. “You can do no less.”
But those remarks went too far, according to the defense motion. Boles and co-counsel Todd Howeth say they were in fact allowed to ask Johnson’s mother about her views. They cite case law backing their views.
“It is simple beyond dispute that it is permissible for a defendant in a capital trial to elicit testimony from people who know him that they do not wish to see him sentenced to death,” they write.
The lawyers say Perren’s remarks also suggested that Aguirre’s family wants Johnson executed.
Because the law does not allow the relatives of a victim to advocate death, “this error alone warrants a mistrial.”
The defense also contends that the admonishment hurt the credibility of Wilma Johnson and implied to the jury that Johnson’s lawyers acted improperly.
That is, of course, precisely what the prosecution argued in court Tuesday.
And it is the position Hardy intends to argue again at next week’s hearing.
“They shouldn’t be allowed to benefit from their own misconduct,” he said.
In court testimony Friday, prosecutors called their first rebuttal witness--Dr. Donald Patterson, a psychologist who interviewed Johnson the day of the shooting.
Johnson’s lawyers have argued that he was suffering from delusions stemming from a mental disorder at the time of the shooting.
But Patterson said that, in his opinion, the defendant is not mentally ill and was not delusional on July 17, 1996.
Testimony is scheduled to resume Monday.