Rodriguez defense says appeal to reinstate death penalty should be dismissed

FARGO (KVRR) – Defense attorneys claim federal prosecutors lacked jurisdiction when they recently appealed a federal judge’s order that overturned the death penalty for Alfonso Rodriguez.

On March 3, prosecutors said they intend to ask a federal appeals court to overturn Judge Ralph Erickson’s order in September that threw out the death penalty and ordered a new sentencing phase to be conducted.

But Rodriguez’s court-appointed legal team now argues that the prosecution’s appeal to reinstate the death penalty was filed prematurely.

“We have also filed with the Eighth Circuit a motion to dismiss the government’s appeal, because this Court’s grant of post-conviction relief is not final and appealable until Mr. Rodriguez is actually resentenced,” defense attorneys wrote.

“Binding authority forbids the government from appealing a grant of sentencing-phase relief…until the defendant is resentenced.  The Court should dismiss this appeal for lack of jurisdiction.”

Erickson, who presided over Rodriguez’s 2006 trial in Fargo, ruled that misleading testimony from the coroner, the failure of lawyers to outline the possibility of an insanity defense and evidence of severe PTSD violated Rodriguez’s rights.

The 69-year-old Rodriguez remains on death row in a federal prison in Indiana.