FARGO — It is statistically unlikely Alfonso Rodriguez will ever face execution, though a new death sentence for the man convicted of killing Dru Sjodin in 2003 is not beyond the realm of possibility.
On Sept. 3, U.S. Eighth Circuit Judge Ralph Erickson overturned the 68-year-old's death sentence after more than a decade of appeals, calling the defense in the case ineffective. Erickson, who presided over Rodriguez's trial in North Dakota federal court, ordered a new sentencing hearing.
A federal jury sentenced Rodriguez to death in 2007 for kidnapping and killing the 22-year-old Sjodin in November 2003. The 2006 guilty verdict from the same jury stands, and Rodriguez remains imprisoned.
It's unclear if prosecutors will seek the death penalty, appeal Erickson's ruling or settle for a life sentence. Acting North Dakota U.S. Attorney Nick Chase said his office is still considering its options.
The odds favored Rodriguez's defense in their efforts to overturn the death sentence, according to numbers from the Death Penalty Information Center, a nonprofit that compiles data but does not have a declared position on the issue.
Between 1976, when the death penalty was reinstated in the U.S., and 2013, 8,466 people in the U.S. have been sentenced to death. The center said 3,194, or 38%, of those death sentences, were overturned.
Only 16%, or about 1,500, of the death sentences, were carried out. For the others, 35% of the cases were still going through the appeals process, 8% of the inmates died on death row and 3% had their sentences commuted.
"The single most likely outcome of a capital case once the death sentence is imposed is that the conviction or the death sentence will be overturned," said Robert Dunham, executive director for the center.
President Joe Biden has said he wants to end capital punishment in federal cases, and in July, U.S. Attorney General Merrick Garland ordered a temporary halt to federal executions.
Still, the Biden administration has sent mixed signals on its stance on capital punishment. The president has not commuted any death sentences, and the U.S. Department of Justice in July asked the Supreme Court to reinstate the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev. An appeals court threw out that punishment in 2020, but the Supreme Court plans to hear arguments in the case next month.
Federal prosecutors also continued efforts this year to pursue the death penalty for Dylann Roof, who in 2015 killed nine members of a Black church in Charleston, South Carolina. His death sentence was upheld last month by an appeals court.
Dunham cited both cases, noting the Justice Department decides on a case-by-case basis when pursuing capital punishment. He did acknowledge Roof's and Tsarnaev's cases have a federal interest: they were acts of terrorism.
Rodriguez's case involved a murder that could have been tried by the state, he said. North Dakota and Minnesota do not allow capital punishment for state cases, so the harshest sentence Rodriguez would get is life in prison.
Dunham said he wasn't questioning whether the murder of Sjodin was a terrible crime, but he did question the circumstances that made it a federal case.
"When you look at the Oklahoma City bombing case or the 9/11 cases or the killings of federal law enforcement officials, those are all things that on their face clearly represent federal interests," he said.
Former U.S. Attorney Drew Wrigley, who prosecuted the case, noted the FBI had jurisdiction since Rodriguez took Sjodin across state lines, which makes it a federal case.
He also said Rodriguez's past history of sexually assaulting women, his refusal to cooperate with law enforcement to help find Sjodin and his lack of remorse and willingness to take responsibility played into the prosecution's decision to pursue the death penalty.
Jurors ruled in 2007 that Rodriguez deserved capital punishment after prosecutors argued he raped Sjodin before marching her into the ravine with her hands tied behind her back.
Her body was found in a ravine in April 2004 near Crookston, Minnesota, five months after she was killed.
Erickson determined defense attorneys did not do enough to challenge a medical examiner's opinion that Sjodin died from slash wounds to her neck. An autopsy report said she could have died from the neck wounds, strangulation, suffocation from a bag being placed over her head or exposure to the cold.
That could impact how jurors weighed aggravating factors against mitigating evidence, Dunham said.
Erickson also found the defense didn't properly explore the possibility that Rodriguez's post-traumatic stress disorder likely caused by being sexually abused as a child may have caused dissociative states, meaning he may have lost his sense of reality at times.
The ruling could be appealed to the U.S. Eighth Circuit Court. Federal appellate rules dictate that would typically have to happen within 60 days of the ruling.
The U.S. Attorney's Office in North Dakota has to get permission from the U.S. Solicitor General's Office before it can appeal the case, according to federal regulations.
If that happened, Erickson would have to recuse himself.
Chase could still pursue the death penalty in the form of another sentencing hearing, but that would require approval from the U.S. attorney general.
Wrigley said he hopes the Justice Department challenges what he called a "faulty legal ruling."
"I think there is a sound basis to go forward and question … what I think is a misapplication of existing case law on ineffective assistance of defense counsel," Wrigley said.