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Rodriguez attorney: Improper evidence at trial

ST. PAUL -- Members of a three-judge panel grilled prosecuting and defense attorneys Thursday over whether Alfonso Rodriguez Jr. received a fair trial in 2006 in the abduction and killing of UND student Dru Sjodin.

Rodriguez's appeal of his conviction and death sentence went longer than scheduled Thursday morning before the 8th U.S. Circuit Court of Appeals.

About 20 family and friends of Sjodin attended the hearing, including her father, Allan Sjodin, and her mother and stepfather, Linda and Sidney Walker; as well as her former boyfriend, Chris Lang, and cousins, aunts and uncles.

Rodriguez, 56, is on death row in a federal prison in Terre Haute, Ind., and did not attend the hearing. None of his family members, several of whom regularly attended sessions of his federal trial in Fargo in 2006, were seen at the hearing in St. Paul.

Convicted of attacks on three Crookston women in the 1970s and 1980, Rodriguez spent nearly his entire adult life in prison before being released in May 2003. Six months later, he abducted Sjodin, a 22-year-old from Pequot Lakes, Minn.,, on Nov. 22, 2003, from Columbia Mall's parking lot while she was talking to Lang on her cell phone.

A prime suspect within three days because of his record as a registered sex offender in his hometown of Crookston, Rodriguez was arrested Dec. 1. But Sjodin's body wasn't found until April 17, 2004, in a ravine a mile west of Crookston.

The evidence included blood in Rodriguez's car that matched Sjodin's, a knife in his trunk, video of him at a nearby store shortly before Sjodin disappeared, and alibis that didn't hold up.

From the beginning, Rodriguez's court-appointed attorneys aimed not so much at convincing the federal jury he was not guilty, but that he should not be sentenced to death.

Thursday's appeal also concentrated on issues relating to how the prosecution pushed for a death sentence, not on issues of guilt or innocence.

Still, West Fargo attorney Robert Hoy, court-appointed local counsel for Rodriguez, finished his oral argument by asking the circuit court to throw out Rodriguez's conviction and give him a new trial. Richard Ney, the Wichita, Kan., lawyer appointed as an expert death penalty defender for Rodriguez, sat at the defense table with Hoy.

U.S. Attorney Drew Wrigley argued the government's case, his first oral argument before the 8th Circuit. Assistant U.S. Attorney Keith Reisenauer was at the prosecution table.

Both sides were told they had 30 minutes to make their cases; Hoy reserved five minutes of his time for a rebuttal. But Chief Judge James Loken and Judges Michael Melloy and Duane Benton regularly interrupted Hoy and Wrigley with pointed questions, and the hearing lasted 15 minutes past the scheduled hour.

Improper evidence?

Hoy said that during the sentencing phase of the trial in Fargo, the prosecution improperly was allowed to introduce evidence connected to Rodriguez's three convictions in Crookston from 30 years ago that wasn't considered relevant at the time. The federal death penalty statute requires the prosecution to prove "aggravating factors," in seeking a death sentence, such as previous crimes that involved "serious bodily injury."

During the sentencing phase, the prosecution called two of Rodriguez's previous victims to testify on the harm to their lives since of his crimes. Hoy said the issue of "serious bodily injury" wasn't part of Rodriguez's previous convictions, as a matter of law, and that Wrigley should not be allowed to use it as evidence in the federal trial, facts that weren't decided in the older, Minnesota state court convictions. Wrigley argued to the appeals judges that the federal death penalty law allows the prosecution to find a broad swath of information to show "aggravation" in the crime, just as the defense is allowed to cast a wide net in finding "mitigating" factors that would argue for a life sentence rather than death. Wrigley said he wanted to also introduce evidence about another alleged attack by Rodriguez on a woman in Mankato, Minn., for which he was acquitted, Wrigley told the appeals judges. But U.S. District Judge Ralph Erickson wouldn't allow it, just another example of how carefully Erickson observed due process in Rodriguez's trial, Wrigley said.

Hoy also argued that Wrigley improperly told the jury that giving Rodriguez a life sentence would be counting Sjodin as "a freebie" because it was the same sentence he would have faced if he had released Sjodin alive. The law prohibits the prosecution from telling a jury it can't consider a life sentence in a federal death penalty case and Wrigley violated that, Hoy said.

Wrigley also misled the jury by telling it that mitigating factors could be disregarded during the sentencing phase if the jury decided they were not relevant to the crime, Hoy said. The law is clear that the jury must consider all mitigating factors, Hoy said. During the trial, the defense argued that the mitigating factors in Rodriguez's sentencing included his exposure as a child to sexual abuse, racism, poverty and pesticides that affected his physical, mental and emotional health.

Wrigley told the court Thursday that he, as well as Judge Erickson, made it clear several times to the jury that it must consider life in prison as an alternative to a death sentence and also must consider all mitigating factors, including simple mercy. But it was proper for him to tell the jury it could decide whether "a mitigator mitigates," Wrigley said.

Long ordeal

After Thursday's hearing, both Hoy and Wrigley clearly were emotionally wrung out and wired, not only by facing each other again in a courtroom, but the tough interrogation by 8th Circuit judges.

"It's pretty clear they want to get down to the grist with you," Wrigley said afterward.

"This is a very serious case, in which a man is condemned to die," Hoy said after the hearing, clearly moved. "It's important that not only the community, but the government be held to the rule of law." His case is simply that Rodriguez did not get due process, Hoy said. He's seen enough courtrooms to know that you can never guess what a jury or a judge will do, Hoy said.

"We are hoping the Circuit gives us a long study."

Wrigley appeared afterward with Sjodin's family and friends outside the federal courthouse at a news conference. At one point, his voice broke as he spoke of how close he had become to Sjodin's family and how important getting her justice is for him.

"This was a long trial; this was a fair trial," he said of the federal trial in Fargo that led to his August 2006 conviction by a jury of seven women and five men. The same jury decided in September 2006 he should be sentenced to death, rather than life in prison without parole. It's the first death penalty imposed in North Dakota in nearly a century. All the concerns raised in the appeal were "litigated and re-litigated," during the original trial, Wrigley said.

Allan Sjodin and Linda Walker spoke briefly, thanking Wrigley and his staff. Walker said she appreciated Wrigley "took this so personally."

Sjodin said he and Linda and others kept as their main mission "that Dru's death won't be in vain."

Wrigley said he expects the appeals court to take five to six months to issue a decision.

Whether or not he's still North Dakota's U.S. attorney by then, he's confident his office will carry on a successful defense of the prosecution of Rodriguez, Wrigley said.

President Barack Obama is expected to appoint a new U.S. attorney in North Dakota to succeed Wrigley, who was appointed by President George W. Bush in 2001.