Posted at 7:05 AM on February 13, 2009
by Tim Nelson
If you were in Courtroom 5A of the Warren Burger Federal Building at 9 a.m. on Thursday morning, you would have seen the judges and attorneys leafing through a legal brief about as thick as a major metropolitan phone book, a veritable catalog of legal arcana.
The appeal of Alfonso Rodriguez Jr.'s death penalty for the rape and murder of a North Dakota college student covers scores of issues. Among them: his attorneys contend the the all-white jury was racially biased against him. They objected to U.S. Attorney Drew Wrigley's pleading final argument, urging them to remember Dru Sjodin, a young woman who lay abandoned, dead in a ravine, all winter, five years ago.
But judges James Loken, Michael Melloy and Duane Benton and the attorneys in the case spent most of their time on one of the least-known aspects of the case: the fall of 1974.
That October, Shirley Iverson was home in Crookston from college and offered to give Rodriguez, the son of a school lunch lady, a ride home after a night out with her girlfriends. He was the older brother of a classmate. "He used to fish in the river behind our house," she remembers. "He lived right up the hill."
But on the way home, he got her to stop the car and he sexually assaulted her. "I think the only reason he didn't kill me is that he didn't know how long it would actually take," Iverson said, in a call after the hearing ended. "He was into strangulation. That was his thing."
Iverson, 18 at the time, survived and reported the attack to police. According to court documents, Rodriguez admitted what he'd done and was charged with aggravated rape. The attack was the first in what turned out to be a long string of tragedies. Rodriguez got out of jail on bail and a month later attacked another woman in Crookston, raping her at knife point. Rodriguez pleaded guilty to the two assaults and spent the next 23 years in prison.
But the cases were back in court this week -- for the third time.
They'd been revisited again three years ago, when Rodriguez was on trial in Fargo. The prosecution cited them as an indication of Rodriguez's criminal history, and one of the "aggravating factors" in the case. Those factors are legally required for a defendant to be eligible for the federal death penalty. Shirley Iverson retold her story in court when the North Dakota jury was weighing the evidence against Rodriguez in the Sjodin case.
Iverson actually suspected Rodriguez all along, because she knew he'd been released from prison just months before Sjodin disappeared. The crime fit his pattern and she says she even looked a little like Dru herself back during the Ford administration.
Defense attorney Robert Hoy conceded Rodriguez had killed Sjodin on Thursday. But he told the judges that the his client's previous convictions didn't clear the legal bar for aggravating factors because the 1974 cases did not specifically spell out "substantial bodily harm."
"You have no idea," Iverson said, remembering the attack, 35 years ago. She'd lost consciousness as Rodriguez strangled her that night. "I had bruises all over."
She read the MPR News story online about the morning's Appeals Court argument from her home in Oregon on Thursday, and remembered the pain all over again.
Any assertion that it wasn't substantial, Iverson says, is just flat wrong. Rape is among the most violent of acts, she says, whether it's done with a knife, a gun or a rope - or no weapon at all.
She objected to the arguments made by Rodriguez's attorneys. It's like, she said, "you get to get a couple of these sort of freebie rapes, because it's 'no harm no foul,' and it isn't until later that you seriously hurt somebody that they really count. You just have this system that continues to minimize the crime, minimize the impacts of the crime, and minimize how people across the country reading this, women, are going to feel about it. One of the things I think that has made such a huge difference for women, is that we've tried to have this crime acknowledged [as] a horrible thing. And to me, this appeal just begins to undermine that. For me, personally, it feels like 35 years later, I'm still having to argue that this was a horrible crime."
And don't think this is just a debating point for Iverson.
She wants Alfonso Rodriguez dead.
Iverson fears still that he'll be freed on a technicality, maybe to strike again -- even find her, perhaps. And she doesn't think just locking him up securely and throwing away the key is sufficient, either.
"The other thing that you have to understand about sex offenders, is that they fantasize about their crimes, both prior to committing it and after they commit it. And the fact that he has time in prison to be able to do that is galling to me," Iverson says. "You know, it's so easy to be socially liberal when you're sitting in your arm chair, thinking about the death penalty. But, given who gets to spend the rest of their life in prison fantasizing about killing Dru or fantasizing about what he's done to his other victims ... He doesn't deserve to be one of them."
Seriously?! Anyone that stands on the same side as this convicted garbage, tells him they are going to do everything they can for him and by doing so, think they are making the world a better place are in fact broken themselves.
Shame on them.
Does no one then deserve to be defended in a court of law, Jake?
It takes a lot of courage to speak up about being a victim. Many rape victims feel shame when they have no reason to and Ms. Iverson made relevant, informed and poignant comments which may have hit home more with women than men. The appeal process is a costly one which is one reason MN does not have the death penalty. Though liberal, I'd vote for the death penalty and I think we'd do an honest job of deciding who gets put to death; we don't have the ugly reputation that some the corrupt and/or racial states in our union do. As un-Christian as it is, I'd be ok being the one to pull the switch - and I don't say it lightly as the corrections officials who HAVE that task take no glee in their job. Some sexual predators may start out as victims themselves, but they can control their choices. We have to take our blinders off and start protecting the innocent potential victims of these vicious criminals. I am sure I am not alone in saying that I've had ENOUGH.
I've known Shirley for almost 50 yrs. I know what she went through 35 yrs ago. For Shirley, advocating the death penalt is a huge thing. I'll stand with her forever.
I cannot support the death penalty. If I stretched my ethos, I might consider it in a response to a particularly violent death. But nothing short of murder would convince me to advocate another's death.
One reason I object to the death penalty is the subjectivity of the criteria for its application. "substantial bodily harm"? How can rape not count?
Is it "substantial bodily harm", if one's ability to participate in the physical act of love is forever impaired?
I'm curious about the writers' intentions about looking at past crimes to apply the death penalty - did they consider rape as a broad category to be an aggravating factor? Or did they have some particular scenario in mind, where rape might not be aggravating factor?
Our definition and understanding of 'rape' or 'sexual assault' has changed quite a bit over the years. While I'm sure that anything considered rape 35 years ago, would still be seen as such: there are many other sexual interactions which are now seen as rape which weren't a few decades ago (e.g. it was not legally possible for a man to rape his wife).
The changing attitudes to crime should accompany a changing perception of what is acceptable for increased punishment.
It forces the prosecutors to separate "bodily harm" from "mental distress", where 'distress' sounds so much more dainty than 'harm'. I'm not sure which is truly worse: the physical damage, which can usually heal, or the psychological damage, which will truly never go away? Both of which are still pretty non-quantifiable.
In the end, we can simply hope or pray that our choices are Just when we judge others.
Elizabeth, you realize he kidnapped Dru, stuck a plastic bag over her head, tied a rope around her neck, stripped her, raped her, and took her half naked to a ditch in late November to slit her throat? Just wondering if you considered this in stretching your ethos?
The irony is rape should be severe bodily harm, no questions asked, no debate.
We are all better off when defendants, even guilty ones, receive a vigorous defense.
What should concern us, is the court taking these defenses seriously.
I support the death penalty for every possible reason - but one; the possibility of executing the innocent.
This seems to be irrelevant in this case.
Our "innocent until proven guilty" legal system requires a vigorous defense; I can't possibly fault a defense lawyer for providing one.
The real lessons are these:
1) Teach your kids - especially your daughters - to NEVER go to a secondary crime scene. Your odds of suriving a stab or gunshot wound are much better than surviving at a secondary crime scene - MANY times better. Kick, run, fight. scream...
2) ...or, better yet, shoot. Our society should consider it the DUTY of every law-abiding citizen of majority to be armed and practiced in responding to lethal force with even better lethal force. Had one of A-Rod's previous victims been able to respond over the years with the *only* response that works with scum like him - being shot in the face at contact range, or at least facing the immediate threat of it - then God knows how many women could have gone thought life without being victimized. Or in the case of Sjodin, gone through life.
When my daughter turns 21, I'm getting her a pistol and a carry permit training class. I hope I've already done the most important part; teaching her that while self-defense with lethal force is the second-worst option, it can stave off the worst option. And that's what we want.
In the appeal of his sentence and conviction, Alphonso Rodriquez’ attorneys claim that testimony should not be allowed in the 1974 rapes because those victims had never proven “substantial physical harm” from their rapes. Questions: What is the definition of "substantial physical harm” from rape? Is it one bruise ....or twenty....or fifty? Is it one slight vaginal tear... or a ruptured vagina? It is a broken trachea or just a bruised one? Is it a broken arm? Broken leg? A sprain? Does there have to be blood? Where is the line between substantial and insubstantial? What is "substantial physical harm"? What can we say about a woman that has “insubstantial’ harm from a rape? Does it count? (no harm, no foul). Does it count in court?
Did Dru suffer "substantial physical harm" from her rape? Do you have to die from your rape to have “substantial physical harm”? How do you testify, then?. And are we to assume that everything, other than death, is insubstantial? See the definitions of substantial and insubstantial below.
sub⋅stan⋅tial: Of a corporeal or material nature; tangible; real
in⋅sub⋅stan⋅tial: Not substantial or real; lacking substance
My ethos regarding my objection to the death penalty is the irrevocable nature of it.
My bigger point is in defining rape: the legal opinion of what constitutes rape has changed since 1974. Date rape, for example, wasn't "rape" in the eyes of the law.
Rape should not be required to equal "severe bodily harm". If a woman finds herself in such a position, and decides not to put up a fight - there will (one hypothesizes) be minimal physical trauma. Does that make it less rape? If she's messed up, mentally, for years afterward, that doesn't apparently make the grade for 'bodily harm'.
What? The criminal gets a lighter sentence because his prior crime wasn't severe enough?
I object to the weasel-wording of "substantial". Kathy's post, above points this out. It leads to what appears here to be wording the law to favor criminals.
Our legal system makes prosecuting someone difficult, with the bar of "beyond reasonable doubt". If we're going to convict someone, the state ought to work for it. In this situation, it appears that a vigorous defense is being assisted by poorly written laws. Poorly written laws lead to a prosecutor having a higher hurdle.
... No, I didn't realize the extent of the crime, which Kay describes. My statement about the death penalty was a general statement, and I still hold that opinion. I am not an ideologue; there are times when the choice is between bad (death penalty) and worse (in this case, apparently letting him live). As with the law, any application of the death penalty must be considered individually.