When National Guard members join the search for Dru Sjodin on Friday, the one person who may know where she is has little incentive to cooperate without hope of a deal from prosecutors. And prosecutors have no incentive to offer such a deal, lawyers said.
Alfonso Rodriguez Jr., 50, has been charged with kidnapping Sjodin from a Grand Forks shopping mall Nov. 22. Prosecutors have said it's unlikely they would offer Rodriguez a deal in exchange for information about Sjodin's whereabouts.
"It's a classic problem," said Richard Frase, criminal law professor at the University of Minnesota. "There are some crimes that prosecutors consider unbargainable because they're so heinous."
Threat of death penalty Rodriguez, who has said he is innocent, faces up to 20 years in prison if convicted of the kidnapping charge filed against him in state district court in Grand Forks. It is possible, however, that federal prosecutors could seek an indictment charging Rodriguez with committing an interstate kidnapping that results in the death of the victim - a crime that carries the possibility of the death penalty.
Holding that threat over Rodriguez's head probably wouldn't be enough to get his cooperation without an ironclad deal, said Bruce Quick, a prominent Fargo lawyer and former county prosecutor.
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"The real question is whether or not the government has the incentive," Quick said.
The probability that Sjodin is dead, as Grand Forks County sheriff's officials believe, removes any incentive for prosecutors to give Rodriguez a break to more quickly find her, Quick said.
"I hate to be cruel, but I think it would be different if they thought she was alive," Quick said. "Frankly, prosecutors may not have the incentive to do anything. They can wait until the investigation concludes or reaches a point where they are not going to find anything else."
There's no statute of limitations on murder in North Dakota.
Interstate? Authorities have discovered one of Sjodin's shoes near the Red Lake River in Crookston, but that's probably not enough evidence to support an interstate kidnapping case, said Joseph Daly, a criminal law professor at Hamline University in St. Paul, Minn. "I'm not sure, but my instincts tell me no," he said.
It's possible to charge Rodriguez with murder even if the body is not discovered, Daly said. Prosecutors would have to prove there was a death, and the death was caused by Rodriguez.
"It's pretty hard to prove a death without an actual body, but it has been done," Daly said.
Kyle Bell was convicted of killing Jeanna North, who disappeared from her north Fargo home in June 1993. Her body was never recovered, but Bell made statements to police indicating he knew where her body was. In a written statement Bell gave shortly before taking a lie detector test, Bell wrote that he was the last person to see Jeanna and that he had "placed her body in the Sheyenne River."
