The Truth Behind the Decision in Alfonso Rodriguez’s Appeal:

Today I went on Tyler Axness’s radio show to talk about the Biden Administration’s recent decision to not seek the death penalty in Alfonso Rodriguez Jr.’s case. The reason I did is that, in a press release addressing the decision, Drew Wrigley made some comments that bothered me, specifically this passage:

“But the system allowed the legal wrangling to continue, culminating over a decade later in a federal judge concluding that the defense attorneys he handpicked for the trial had, upon further consideration, been legally and constitutionally deficient. He ordered a new sentencing hearing.”

As I tried to explain on the radio, this is misleading at best and untruthful at worst. So in this post, I’m going to do three things:

1. Summarize what really happened in the case that led Ralph Erickson, the Republican-appointed federal judge Wrigley criticized in his press release and on Joel Heitkamp’s radio show, to order a new sentencing hearing in Rodriguez’s case.

2. Catalogue quotes from Judge Erickson’s opinion that support my written summary and what I said today on Tyler’s show.

3. Provide Judge Erickson’s full order—all 232 pages—for you to read yourself, lest you think I’m cherry-picking from it to make Wrigley look bad.

Ultimately the point of this, and the point of me talking with Tyler, is not to defend Alfonso Rodriguez. It’s to defend the truth about what happened in the appeal, not what Drew Wrigley is trying to spin to the media.

Summary of Judge Erickson’s ruling

After Rodriguez was convicted and sentenced to death, federal law requires that we review the case to make sure everything was done correctly before we put the person to death. The idea is that, before we give someone the most serious punishment known to man, we should double-check our work to make sure the person sentenced to death should actually be killed.

That’s what happened here.

It wasn’t Judge Erickson thinking Rodriguez was wronged and taking a second look. It wasn’t liberal lawyers trying to find some loophole to get Rodriguez off for what he did. It was simply everyone following the requirements under federal law.

So that’s the first part of Wrigley’s statement that’s misleading. This wasn’t a runaway judge or a runaway appeals lawyer. It was the system working like it’s intended to work.

Now during this final review, lawyers for Rodriguez made a startling discovery. They learned that the star expert witness in the government’s case, a man named Michael McGee, had provided “unsupported, misleading, and inaccurate” testimony at Rodriguez’s trial. Specifically, McGee testified that Rodriguez had raped Sjodin before killing her because he had found Rodriguez’s sperm inside Sjodin.

The problem with this, however, was that it wasn’t true.

It was never true.

Despite this, it was somehow allowed at Rodriguez’s trial. So the question Judge Erickson had to figure out was—how the hell did this happen? How was false testimony allowed to be offered at the most important federal trial in North Dakota history? And whose fault was it that this happened and wasn’t caught before or during the trial?

To answer the last question first, Judge Erickson ruled that it was Rodriguez’s trial lawyers who were to blame for failing to discover that McGee’s testimony was inaccurate. But Judge Erickson didn’t stop there. He also made it clear that it was not just the trial lawyers who played a role in allowing McGee to testify at trial.

This is the second part of Wrigley’s statement that is misleading. He’s correct when he says that Judge Erickson found Rodriguez’s trial lawyers deficient. But what he cleverly leaves out is why Judge Erickson made that finding.

And the reason Wrigley leaves that out is that it implicates him and his office.

First, it was Wrigley’s office—not Rodriguez’s trial lawyers—who used McGee as an expert. They sought him out. And it wasn’t like they had to. They could pick any expert they wanted. They chose McGee.

Second, when McGee came to his conclusion about Rodriguez’s semen being in Sjodin, Wrigley didn’t disclose this to Rodriguez’s lawyers until just two months before trial. And while this might sound like a long time, in a case of this size and magnitude, that is not a long time. Nor did they just hand only McGee’s report over to Rodriguez’s trial lawyers; instead, they buried it among 20,000 other documents.

Third, when Rodriguez’s lawyers finally figured out what Wrigley planned to have McGee testify to, they tried to stop it. So Judge Erickson held a hearing to decide whether McGee could testify. At the hearing, Judge Erickson wrote that he was “misled” to believe that McGee’s opinion was scientifically sound, in part because Wrigley told the court that it was based on good science. Because of this, Judge Erickson allowed McGee to testify, but in his order he said that had he known then what he knows now (meaning after the truth about McGee was discovered), he never would have allowed McGee to testify.

Fourth, just weeks before trial, Wrigley disclosed explosive evidence to Rodriguez’s trial lawyers that, at the time, nobody noticed. It was only on the final review before putting him to death that his appeal lawyers discovered and understood its importance. It was evidence that the police themselves, long before Wrigley hired McGee, had debunked the notion that Rodriguez’s semen had been found inside Sjodin. And while Rodriguez’s trial lawyers were forced to admit that they overlooked this evidence, it’s also true that Wrigley and his team did, too. After all, it was in their possession the whole time. Had they looked at it like they should have, they would have known that McGee’s expert opinion was bogus.

Finally, Judge Erickson made clear that this was not a case in which McGee’s opinion was good science when it was offered at Rodriguez’s trial in 2006, but then later was debunked by new, better science. It was the opposite. According to Judge Erickson, had anyone scratched below the surface and looked into McGee’s opinion at all, they would have quickly discovered it was bogus. Now Judge Erickson placed the blame of not doing this on Rodriguez’s trial lawyers, but again, Wrigley deserves equal blame. McGee was his handpicked expert. He had a duty to make sure his expert’s opinion was valid and withstood scientific scrutiny. He did neither.

So what? Why does this matter?

Well, Judge Erickson was careful to separate this into two categories.

First, he said that McGee’s false testimony did not cast doubt on his confidence in the guilty verdict in the case. Put another way, even if Rodriguez didn’t rape Sjodin before he killed her, he still killed her. So even without McGee’s flawed testimony, Rodriguez was still guilty of a heinous crime.

Second, McGee’s false testimony did cast doubt on his confidence that the jury would have sentenced Rodriguez to death had they not heard the testimony. And that’s because to put someone to death in the federal system, the government has to convince the jury that the murder was “especially heinous,” or much worse than normal. Here, the reason Wrigley told the jury that Rodriguez’s case qualified is because he raped Sjodin before he killed her, and he pointed to McGee’s testimony as proof. But because the testimony was false, Judge Erickson said it would no longer be fair to allow Rodriguez’s death sentence when it was possible (and likely probable) that the jury relied on McGee’s false testimony in making its decision.

So he did what any judge who cares about the law, truth, and justice would do: he ordered a do-over.

He didn’t set Rodriguez free. He didn’t even say that Rodriguez could no longer be sentenced to death. He simply said that Wrigley had to redo Rodriguez’s sentencing hearing, but this time without using any of McGee’s false testimony.

And that’s where things stood until yesterday when the Biden Administration stepped in and made the decision to no longer pursue the death penalty against Rodriguez. It was their decision, not Judge Erickson’s, and Wrigley’s insinuation that it was both is wrong.

One last thing.

At no point during the appeal process did Wrigley or anyone from his office defend McGee’s opinion or testimony. Not once. As Judge Erickson noted, this shows that deep down they know it was wrong too. For had they thought McGee was right, they would have fought for him tooth and nail. They would have brought him in to defend himself against the accusations made by Rodriguez’s appeal lawyers. That they didn’t speaks volumes.

Judge Erickson summarized it best when he said: “if McGee’s conclusions were actually supported by the evidence, Rodriguez’s ineffective assistance of counsel claims and constitutional claims could be resolved with little difficulty.”

But they weren’t.

So Judge Erickson, knowing the blowback he would face, did the courageous and honorable thing and required Rodriguez to be resentenced.

Drew Wrigley’s partisan spin to the contrary is false and should be rejected.

quotes from Judge Erickson’s ruling

The only thing to remember when you read these quotes is that, when Judge Erickson says “the government” or “the prosecutor,” he means Drew Wrigley and his trial team.

• “While it is beyond question that Rodriguez abducted and murdered Sjodin, the evidence now in the record has led the Court to conclude that errors were made that violate the United States Constitution such that due process demands a new penalty phase trial be held.” (p. 7)

• “But, these post-conviction relief proceedings have uncovered credible evidence demonstrating that in the trial of this case, the truth was obscured.” (p. 7)

• “Ramsey County Medical Examiner Michael McGee (“McGee”) presented unsupported, misleading, and inaccurate testimony regarding the cause of Sjodin’s death. The circumstances surrounding Sjodin’s death were instrumental in advancing the government’s arguments for why this case is unlike other murders such that a death sentence was the only just and appropriate punishment.” (p. 8)

• “When the government failed to produce a single witness to support McGee’s trial opinions during the course of these post-conviction proceedings, and not even McGee himself attempted to support his trial opinions, there can be only one reasonable conclusion—the jury did not hear the truth.” (p. 8)

• “The government told the jury repeatedly that this case was about Rodriguez’s intentions and deliberate choices. A choice to search for a female on November 22, 2003; a choice to sexually assault that female; a choice to kill that female. That may not be the truth. If the jury heard evidence about the severity of Rodriguez’s mental health condition, there is a reasonable probability that at least one juror would have struck a different balance and voted to impose a life sentence, rather than a death sentence.” (p. 8)

• “[Appellate] counsel’s arguments . . . can be summarize as follows: (1) there is no reliable scientific evidence that Rodriguez sexually assaulted Sjodin (and, in fact, the lab testing demonstrates there was no rape); (2) trial counsel were ineffective in failing to discover this fact; and (3) the entire trial was infected by McGee’s unreliable opinions, which deprived Rodriguez of a fair trial. The Court agrees with [appellate] counsel on the first two claims, but not the third.” (p. 10)

• “The government’s theory that Rodriguez raped Sjodin because semen was detected in lab testing was based on nothing more than rank speculation.” (p. 10)

• “Rather, [McGee’s] opinion was so unmoored from a scientific basis that it should not have been received at all. Trial counsel did not realize the significance of the evidence buried in 20,000 pages of discovery at the time of trial.” (p. 11)

• “Trial counsel faced a few unexpected hurdles at the last minute before trial started. One of those hurdles was the government’s late disclosure related to Ramsey County Medical Examiner Michael McGee’s opinions.” (p. 12)

• “With over just two months left to finish trial preparations, trial counsel learned for the first time that the government intended to offer opinions from McGee at trial that were not contained in his autopsy reports.” (p. 12)

• “Trial counsel’s ability to mount an adequate last-minute defense was hampered by the difficulty in obtaining the bases for McGee’s newly-disclosed opinions.” (p. 13)

• “While the Eighth Circuit Court of Appeals affirmed the Court’s admissibility ruling under an abuse of discretion standard . . . if the Court knew then what it now knows about (a) the totality of the lab testing that was done in this case, (b) the results of that testing, and (c) that the dispute went beyond merely ‘two schools of expert thought,’ it would have ruled differently.” (p. 15)

• “The Court was mislead by the misleading and incomplete evidence offered at the evidentiary hearing to determine admissibility [of McGee’s testimony] under Rule 702. As it turns out, McGee’s opinions were not, as the prosecutor argued at the pretrial conference, a matter of ‘not controversial science’ such that the only dispute pertained to arguments over the appropriate cutoff number.” (p. 36)

• “Having carefully considered the trial record and the evidence presented in this proceeding, the Court finds, and would have found at the time of the Rule 702 hearing had all the pertinent evidence been presented, that McGee’s opinions regarding the presence of semen were unreliable and lacked a scientific basis. These findings render McGee’s opinions inadmissible.” (p. 36)

• “The disclosure [of the police’s test debunking McGee’s testimony] was made by the government within weeks of the commencement of trial along with other discovery during a time in which all sorts of issues were going on with the government’s late disclosures of expert opinions.” (p. 37)

• “The Court is not convinced that McGee’s flawed interpretation of the evidence of sexual assault, while certainly regrettable and unfortunate, deprived Rodriguez of a fair trial.” (p. 39)

• “The Court begins its analysis with the public and troubling fact that longtime Ramsey County Medical Examiner Michael McGee has a well-documented history of providing false or inaccurate testimony in court. McGee’s testimony has been proved to not be supportable by science.” (p. 51)

• “If McGee’s conclusions were actually supported by the evidence, Rodriguez’s ineffective assistance of counsel claims and constitutional claims could be resolved with little difficulty. But, the record now makes plain that McGee’s conclusions are unsupportable and unsustainable as to the cause of death and that trial counsel failed to adequately investigate McGee’s conclusions, which would have shown them to be scientifically invalid.” (p. 56)

• “Here, there was no meaningful investigation or consultation with a competent expert on the issue of cause of death. The result is that the government’s evidence as to cause of death, although developed from entirely flawed analysis, was not challenged in any meaningful or persuasive manner at trial.” (p. 75)

• “This is not a case where science or technology has evolved over the intervening years in a way that changes what was known or what could have been discovered. The opposite is true.” (p. 76)

• “As detailed earlier, the core of the government’s argument as to why this murder is distinguishable from other murders and warranted capital punishment was the repeat image the government planted in the jury’s mind: Rodriguez marched a half-naked Sjodin to the ravine where, after he raped her, he slashed her throat and left her to bleed out and die alone in the freezing cold. That image was created from McGee’s testimony. That image has now been shown to be based entirely on speculation. Without question, that speculative image contributed to the jury’s decision to impose the most severe penalty.” (p. 77)

• “Had trial counsel not performed deficiently and adequately investigated the government’s evidence on cause of death, a different case (not an entirely different one because the inadmissible expert testimony does not cast doubt on Rodriguez’s guilt) would have been presented to the jury.” (p. 78)

• “The prosecutor argued the death took ‘long minutes.’ The prosecutor minimized the possibility raised by the defense that Sjodin’s death could have been much less horrifying and caused by strangulation shortly after the abduction occurred. The prosecutor told the jury that the defense’s theory would be inconsistent with McGee’s ‘forensic investigation,’ made ‘no sense,’ and was ‘a red herring.’” (p. 107)

• “Without the false and inaccurate knife wound testimony, the jury would have heard a different case. The remaining physical evidence, which included some bruising, a plastic bag over Sjodin’s head, and asphyxia caused by the neck ligature and/or the plastic bag or manual strangulation, might not set this case apart from other killings such that the evidence satisfies the relevant definitions necessary to sustain the statutory aggravating factor.” (p. 108)

• “The record demonstrates that McGee’s false and inaccurate testimony opened the door to the government’s inflammatory arguments, unsupported by the evidence, regarding the circumstances and cause of death, which so infected the penalty phase that Rodriguez was both deprived of due process and has shown prejudice.” (pp. 109-110)

• “The evidence adduced in this proceeding paints a very different picture [of Rodriguez]. The record as now developed contains credible evidence indicating Rodriguez not only suffers from PTSD, as Dr. Hutchinson testified at trial, but that Rodriguez’s PTSD may be so severe that it causes Rodriguez to enter into full-blown dissociative states. The only reason that this evidence was not exposed pretrial is because trial counsel made a conscious decision to limit the experts’ ability to talk to Rodriguez about the offense conduct.” (p. 119)

• “It is beyond question that the admissible evidence on aggravation and mitigation would look remarkably different today than it did at trial, despite the extensive evidence that was presented on the 30 mitigating factors submitted to the jury.” (p. 126)

Judge Erickson’s ruling

Here’s the full 232-page ruling. And like I have said all along, I’m happy to retract any inaccuracies to my summary or my interview with Tyler.

You can also listen to my full interview with Tyler here.