Three of convicted rapist Alfonso Rodriguez Jr.'s prior offenses could have a major impact on whether he faces the death penalty for the kidnapping and murder of Dru Sjodin.
Arguments during a pretrial hearing Friday in Fargo's U.S. District Court focused on those convictions, how the defense plans to rebut them and what jurors will hear about them.
The trial for Rodriguez, 53, of Crookston, Minn., begins July 6. If jurors find him guilty, they must sentence him to life in prison or death.
Sjodin, 22, disappeared from a Grand Forks, N.D., mall parking lot on Nov. 22, 2003. Her body was found in a ravine near Crookston about five months later.
During much of the pretrial hearings, debate has focused on factors that might be used to argue whether Rodriguez should face the death penalty if he's convicted.
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Court-appointed defense attorneys Richard Ney and Robert Hoy argue that jurors should know the victim of a 1980 attempted kidnapping and assault in Crookston identified Rodriguez through hypnosis, a form of evidence courts no longer allow.
They hope to convince the Minnesota Court of Appeals to throw out the victim's testimony during a June 15 hearing, three weeks before Rodriguez's federal trial is slated to begin in Fargo.
In his federal case, Rodriguez's lawyers want to attack the use of hypnosis to gain the earlier Crookston conviction in an effort to mitigate jurors' consideration of the death penalty.
"The jury (in 1980) decided this on information they shouldn't have heard," Ney said. "On information that wouldn't be admissible today."
Assistant U.S. Attorney Keith Reisenauer said defense lawyers are using new arguments on issues Judge Ralph Erickson ruled against.
Rodriguez argues that he isn't guilty of the 1980 conviction because the victim was hypnotized and not because he didn't do it, Reisenauer said.
The prosecutor also said Rodriguez's lawyers can refute whether the victim suffered serious injuries, but not the conviction itself.
The judge took the item under advisement and wants the Minnesota appellate court to expedite its hearing.
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Ney also argued Friday that jurors shouldn't be allowed to consider two 1974 rape convictions because court records don't show the victims suffered serious injuries, an important factor jurors consider in deciding whether a defendant is eligible to face the death penalty.
Assistant U.S. Attorney Norm Anderson said prosecutors don't plan to use expert witnesses to testify whether the women suffered serious injuries. Instead, the women will testify about how the assaults affected them.
Erickson delayed deciding the issue and plans to preside over a hearing where lawyers can debate whether jurors can hear evidence about the two rape convictions.
Defense lawyers also asked the judge to dismiss the case on claims Rodriguez is being denied a fair trial because he hasn't received enough money to put on an adequate defense.
The court paid $4,800 to fund a study showing that 88 percent of residents in southeastern North Dakota believe Rodriguez is guilty. Funding for a similar study in Minneapolis, where his lawyers would like to move the trial, and for an expert witness to testify on venue issues, have been denied, Ney said.
"Justice can't be based on money, especially in a case of this magnitude," he said. "Without funding, we're at an extreme disadvantage."
U.S. Attorney Drew Wrigley said a fair jury can be found in North Dakota, but defense lawyers haven't requested to add western North Dakotans to the jury pool.
Sjodin's parents, Linda Walker and Allan Sjodin, have attended every public court hearing since Rodriguez was charged in federal court nearly two years ago.
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Allan Sjodin doesn't think the trial will be moved from Fargo.
"As long as Dru is served justice, we will go anywhere," Walker said.
Lawyers met with Erickson in his chambers on Thursday to talk about courtroom space, security concerns during the trial and questionnaires sent to potential jurors. They met again Friday after the public hearing to discuss mental health issues relating to Rodriguez.
In other paperwork filed this week, prosecutors released a list of 11 expert witnesses, including eight state or federal forensic scientists, who will testify at trial.
Rodriguez's lawyers filed an objection, claiming the list doesn't meet federal rules requiring the government to provide written summary of the testimony.
(Steven P. Wagner writes for The Forum of Fargo-Moorhead, a Forum Communications Co. newspaper)
