Judge Steven Z. Perren on Monday denied a defense motion for a mistrial in the case of Michael Raymond Johnson, who faces the death penalty for killing a sheriff's deputy in July 1996.
The motion came just days before the conclusion of the penalty phase of Johnson's trial. The 50-year-old Vietnam veteran faces possible execution for fatally shooting Ventura County Sheriff's Deputy Peter J. Aguirre during a domestic dispute in Meiners Oaks.
Defense attorneys argued in the motion filed last Thursday that Perren irreparably prejudiced the jury when he "strongly and specifically" told it to disregard the defense attorney's question to Johnson's mother, Wilma Johnson, and her reply.
Public defender Brian Boles asked Wilma Johnson on Feb. 24 if she wanted her son to get the death penalty.
"Of course not," Johnson answered quietly.
But her voice was drowned out by an angry objection from Deputy Dist. Atty. Matt Hardy.
Perren ordered the jury from the room. He told the defense attorneys that case law "unequivocally" shows that question is not to be asked.
He then admonished the jury that the expressed feelings of the defendant's family are not to be considered when weighing punishment.
In its motion, the defense argued that it is permissible to ask the question, and cited other cases to support that position.
It even cited an Oregon case in which a prosecutor took the defense to task for not asking the question.
Hardy told the judge he did not think the defense should be allowed to "benefit from their own repeated misconduct."
After hearing both sides' arguments Monday afternoon, Perren held his ground.
"I don't think the question should be asked," Perren said, referring to the death penalty question. "I believe the state of law is that you don't get to ask that question . . . and you don't get a sampling of family and friends."
Closing arguments for the case are expected to begin Wednesday.