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Prosecutors: Glad, not surprised Rodriguez death sentence appeal denied

FARGO -- The team of prosecutors that made the federal case against Alfonso Rodriguez Jr. said at a news conference Tuesday they were glad but not surprised to learn that the Crookston man's death sentence appeal in the Dru Sjodin case was rebuff...

FARGO -- The team of prosecutors that made the federal case against Alfonso Rodriguez Jr. said at a news conference Tuesday they were glad but not surprised to learn that the Crookston man's death sentence appeal in the Dru Sjodin case was rebuffed by a federal court in Minneapolis.

"We are gratified by this outcome," acting U.S. Attorney Lynn Jordheim said. "But we know this is just a step on the road to the ultimate resolution of this case."

The 2-1 decision by the 8th U.S. Circuit Court of Appeals came down three years to the day that a jury decided Rodriguez should die for the kidnapping and murder of Sjodin, a UND student, on Nov. 22, 2003. It's the first death penalty case in North Dakota, which has no death penalty law, in a century.

Rodriguez remains on death row in a federal prison in Indiana. His attorneys, Richard Ney, Wichita, Kan., and Robert Hoy, West Fargo, are expected to begin further appeals.

Wrigley replaced


Just last week, Jordheim replaced Drew Wrigley, who stepped down after eight years as the chief federal prosecutor in North Dakota.

Wrigley said Tuesday he wanted to stay in office as long as possible but left knowing the case against Rodriguez was handled well and would continue to be.

"This case is not about any individual prosecutor. This case is about this office," he said at the news conference, flanked one last time by Jordheim and the two who helped him try the case in the courtroom -- Assistant U.S. Attorney Keith Reisenauer and now-retired Assistant U.S. Attorney Norm Anderson.

"This case remains in extremely capable hands," Wrigley said.

Since arguing against the appeal in a hearing last spring in Minneapolis, Wrigley said there had been no communication between the U.S. attorney's office and the appeals panel, which is usual.

Wrigley has begun his new job as a corporate security consultant for Noridian, a branch of Blue Cross/Blue Shield, in Fargo. He said he learned of the appeals court decision only Tuesday morning, as did the U.S. attorney's office, and that he had no heads-up about the decision coming that affected his leaving office.

Unfair venue

Attorneys for Rodriguez, 56, had argued that Fargo was an unfair venue for the trial because of the massive publicity over Sjodin's dramatic abduction from the Columbia Mall parking lot. The appeal also argued that racism in the region affected the jury selection, as well as the jury's decision to convict Rodriguez and find him eligible for the death penalty. The appeal also challenged the constitutionality of the federal death penalty and alleged errors by the prosecution.


The appeal got the ear of one of the three federal judges who heard it last spring in Minneapolis. Judge Michael Melloy dissented from the other two judges, saying there were errors by prosecutors during the penalty phase of the trial that were serious enough that the death sentence should be overturned. But the two-judge majority said that prosecutors did not abuse their discretion and did not make errors serious enough to affect the justice of the conviction and death penalty.

Ney said he was disappointed but also gratified "by the fact that Judge Melloy would have reversed the death sentence based on prosecutorial misconduct."

"I guess we are left with the disturbing thought that we can put a man to death even when one of the three learned judges who heard the case believes he did not get a fair trial," Ney said.

National attention

The kidnapping and murder of Sjodin, 22, by a long-imprisoned sex offender galvanized the nation and has led to tightening of state and federal laws and watchfulness of sex offenders. Rodriguez had been released in May 2003 after effectively spending his entire adult life behind bars for violent sexual assaults of three women in Crookston. Prosecutors proved to a jury that five months after getting out of prison, he stalked and abducted Sjodin, sexually assaulted her, strangled and stabbed her to death and left her body in a ditch only a mile from Crookston, where it was found April 17, 2004.

Sjodin's mother, Linda Walker, Pequot Lakes, Minn., said Tuesday she knows this case will continue and that her family's pain hasn't left. She has become an activist in making better laws to protect women, especially from sex offenders.

"This is another reason why we should not let these predators out to reoffend time and time again," Walker said.

Issues of appeal


The issues addressed in Tuesday's appeal court decision first were heard during the federal trial in Fargo in 2006 before U.S.District Judge Ralph Erickson, often more than once in various phases of the trial.

The issues appealed include seemingly minor details, such as the defense objecting to Wrigley shaking hands with Sjodin's father, Allan Sjodin, after he had testified to the effect of his daughter's death on his own life, during the penalty phase of the trial.

That gesture of such solidarity between the prosecutor and the victim's father, in front of the jury, prejudiced Rodriguez's chances, defense lawyers argued. The appeals court disagreed, saying such a handshake, if that's as far as the exchange went, was not enough to influence the jury unduly against Rodriguez.

Erickson's stern mandate not allowing emotional statements by the half-dozen Sjodin family and friends who gave victim impact statements stung Sjodin's mother, Linda Walker, as unfair, she said last year. That was partly because Erickson seemed to afford Rodriguez's family much more latitude in expressing emotion during their statements before the jury asking it to spare him the death penalty, she said.

The defense also argued in the appeal that Wrigley's statement to the jury during closing arguments to find against Rodriguez "regardless of what defense experts are trying to sell you in this case," was improper enough to require a new trial.

The appeals court, citing precedents, said that improper comments by a prosecutor can require the reversal of a conviction, if the comments prejudice the case against the defendant enough. While the appeals judges agreed that Wrigley's comment was "inappropriate," two of them found that the remark didn't affect the fairness of the trial.

But Melloy said he found the improper "sell" comment by Wrigley important enough, when added to other errors by the prosecution, including several instances of "denigration" of the defense's case, to require a reversal of the death sentence and a new sentencing hearing.

Melloy said the prosecution's errors gathered around mischaracterizing the jury's duty in the case. Too often, Melloy said, Wrigley told the jury "that they would not be carrying out their duty if they failed to return a death penalty."

That was improper enough to violate Rodriguez's right to a fair trial, Melloy said, although his two colleagues did not agree.

On Monday, Wrigley referred to that issue, saying while he was proud of the way his office prosecuted the long and complex and most serious case, there were some details he would go back and change, if he could.

"Would I leave out the word 'sell'? Yes."

As with almost everything to do with the case against Rodriguez, most arguments focused not on whether he was guilty but whether the sentence should be death or life in prison.


Within a few days of Sjodin's abduction, investigators had gathered evidence that included Sjodin's blood -- matched to her DNA -- in Rodriguez's car, a knife in his trunk matching the sheath found next to Sjodin's car in the Grand Forks parking lot and an inadequate alibi by Rodriguez for what he did that day in Grand Forks, where he showed up in security camera video. It came out during the trial that Rodriguez's sister participated in an unsuccessful effort by investigators to try to get her brother to confess and tell her where Sjodin's body was, while a hidden tape recorder was running.

Rodriguez didn't testify and never changed his early denials to investigators that he had anything to do with Sjodin's disappearance. During the trial, it came out that he had tried to plead guilty in exchange for a sentence of life in prison, but the offer was rejected by the prosecution.

Much of the defense's appeal had to do with how mitigating factors, such as Rodriguez's difficult childhood, alleged racial and sexual abuse while growing up and learning disabilities, were talked about during the penalty part of the trial.

The defense argued that prosecutors and Erickson gave jurors wrong ideas about how to balance "mitigators" arguing for a life sentence against "aggravators," such as previous violent crimes, raised by the prosecution arguing for a death sentence.

Rodriguez, a Mexican-American whose parents were migrant farm workers who moved to Crookston in the 1950s from Texas, argued, through his attorneys, that the jury selection process excluded blacks, American Indians and Hispanics, thus making his trial unfair.

His attorneys also argued that the federal death penalty process itself is rendered unconstitutional by racial bias because more death penalties are sought against defendants with victims who were white and female than victims who were nonwhite and/or male. The appeals court said it was not persuaded by the defense's arguments alleging racial bias kept Rodriguez from getting a fair trial and sentence.

But Melloy said he found that Wrigley mischaracterized the nature of mitigating factors and improperly defined to the jury how it should decide them. Melloy also wrote that Erickson did not do enough to repair, before the jury, the damage Wrigley had done.

Melloy ended his dissent by writing, "I am firmly convinced of the reasonable probability that one or more jurors failed to appreciate the full spectrum of available mitigating factors and the full spectrum of discretion that they were entitled to exercise. I would vacate the death sentence and remand for further proceedings."

All involved say this case is far from over.

Although federal death penalty appeals generally are said to be more streamlined than similar cases in some state courts, such as California, Rodriguez isn't likely to face an executioner anytime soon.

Another appeal?

Rodriguez's attorneys now can appeal this decision of the three-judge panel to the entire "banc" of 11 federal judges on the Eighth Circuit, based in St. Louis; and/or to the U.S. Supreme Court. Either court could decline to hear the appeal or order a new trial or a new sentencing hearing.

A third possible action, a separate motion by the defense for a habeas corpus hearing, in which matters can be brought up not in the original case, such as inadequate lawyering or some other issue to give the defendant another chance in court, could be brought in a federal court in North Dakota or in Indiana, where Rodriguez is in prison.

Richard Deiter, head of the Death Penalty Information Center, told The Associated Press there are about 58 people on federal death row, and none have been executed since 2003. Some have been in the same prison as Rodriguez, in Terre Haute, Ind., since the early 1990s. It's the only federal prison with a facility for lethal injections.

Dieter said he doesn't think any of the 58 will be put to death until pending challenges to the constitutionality of lethal injection are resolved in court.

The Associated Press contributed to this report. Reach Lee at (701) 780-1237; (800) 477-6572, ext. 237; or send e-mail to slee@gfherald.com .

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