Alfonso Rodriguez Jr. appeals 1980 conviction

Rodriguez has three convictions on his record -- two in 1974 for aggravated rape, and another in 1980 for stabbing a woman in the arm and abdomen when she refused to get into his car. It is that case his lawyers are appealing, and it could affect the current case against him.

If Rodriguez is convicted of killing Sjodin and the government seeks the death penalty, his criminal record would be a factor in whether he would be sentenced to death, or life in prison.

Rodriguez's lawyer Robert Hoy told the panel that two past convictions are far better than three, and could tip the jury to give Rodriguez life in prison rather than the death penalty.

Hoy said in 1980, jurors based their conviction on evidence that no longer is allowed in courts -- an identification under hypnosis. The victim, Ardyce Whalen, picked Rodriguez out of a second photo lineup, but she said another man's eyes also looked familiar. Whalen identified Rodriguez under hypnosis, but that was never brought to the jury's attention.

"The jury heard this woman's testimony from the stand just as though hypnosis never happened," argued Hoy. "She's now in a courtroom of law, answering questions, positively identifying the man sitting at counsel table, multiple times, as 100 percent sure that's the guy that did it, when she had no such certainty, had expressed no such unequivocal identification at any time to law enforcement before she was hypnotized."

The prosecutors in that case only brought in Ardyce Whalen's identification of the second photo lineup.

One month before Rodriguez's conviction, the Minnesota Supreme Court ruled that a witness could not testify about information recovered under hypnosis. In the Whalen case, the court decided to use only her pre-hypnosis testimony.

If Rodriguez is convicted of killing Sjodin and the government seeks the death penalty, his criminal record would be a factor in whether he would be sentenced to death, or life in prison.

Appeals Court Judge David Minge told Hoy he was concerned that the case was so old.

"We're dealing with something that's obviously stale, he served his sentence," said Minge. "If we're looking at the passage of time, it distorts the process."

Hoy responded that there was more at stake -- the credibility of the state's justice system.

"This court should be concerned about the integrity of its own judgments because other people are relying on them. The United States government intends to rely on this," said Hoy. "If anyone's going to do something about this, it has to be the state of Minnesota."

Representing the state of Minnesota, Polk County Attorney Greg Widseth told the court he agreed the case was about the court's integrity. He said the court should not disturb a conviction that not only considered the Minnesota Supreme Court's hypnosis ruling, but also survived at least two appeals.

"This case is about the desperate steps that a convicted sex offender will take when faced with new charges, and the resulting possiblity of a death penalty if convicted of those charges," Widseth said.

Widseth told the court the defense did get a fair trial. He said the attorney in the case could have raised the hypnosis issue during trial by bringing in a hypnosis expert, but the defense made the decision to keep that out. Widseth said questions over trial tactics aren't enough to reopen a case that's 26 years old.

One of the judges who upheld Rodriguez's case on appeal was Russell Anderson, who at the time was a Polk County judge. Anderson is now Chief Justice of the Minnesota Supreme Court.

If the Court of Appeals erases Rodriguez's 26-year-old conviction, it would not affect the federal government's ability to seek the death penalty. But his attorneys argue that one conviction could mean the difference between life and death by lethal injection.

The appellate court will rule within 90 days.

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