Is the Rodriguez trial in the right court?

Prosecutors are trying Rodriguez in federal court, not state court, because he's alleged to have kidnapped Sjodin in North Dakota, moved her across state lines, and killed her in Minnesota.

The kidnapping is the hook to the case being in federal court. McGee testified that the 22-year-old Sjodin was abducted in North Dakota but killed in Minnesota.

On the other hand, the defense argued in opening statements that Sjodin was never kidnapped; that she was killed in a mall parking lot and her body was moved to a Minnesota ravine.

If Rodriguez is acquitted on federal charges, the case could end up in state court. But there's no guarantee the case would survive in Minnesota or North Dakota courts because of double jeopardy laws.

Without the kidnapping across state lines, the case is not a federal one. And if it's not a federal case, then the death penalty can't be imposed.

Kevin Washburn, who teaches criminal law at the University of Minnesota and is a former federal prosecutor, says the jury will need to determine when Sjodin's kidnapper moved her from the parking lot -- before or after she was killed. If before, then there is no federal kidnapping charge.

"The defense could conceivably argue that she was not alive when the transportation began," Washburn says. "And the government bears the burden of proving she was alive when the transportation began."

Stanford University law professor Robert Weisberg says the government need only prove that Rodriguez held her for some period of time while she was alive, and transported her before her death, in order for a kidnapping.

"If he moved her from one spot to another, however briefly, and then killed her, then he's probably guilty of kidnapping," Weisberg said. "And then the federal statute is uninterested in whether the transportation across state lines occurred before or after her death."

If Rodriguez is acquitted on federal charges because the prosecution couldn't prove the kidnapping charge, the case could end up in state court. The defense has asked for a special jury instruction that if jurors acquit Rodriguez on federal charges, he could also be tried for Sjodin's murder in state court.

But there's no guarantee that the case would survive in Minnesota or North Dakota state courts because of double jeopardy laws.

Michael Hagburg, a staff attorney at the North Dakota Supreme Court, says the two states have different standards on what constitutes double jeopardy. He says Minnesota law is more specific -- it says you can't prosecute a person a second time for the same identical crime, based on the same set of facts. In North Dakota, the threshold is more vague.

"The statutes and the statutory language certainly give attorneys an argument to make on behalf of their client against a second prosecution in state court," Hagburg says.

Stanford's Robert Weisberg says in raising the issue of federal court versus state court prosecution, the defense may be trying to convince the jury not to impose the death penalty.

"The argument seems to be that the death penalty shouldn't turn on such arbitrary or morally irrelevant facts that he crossed state lines, but those morally arbitrary factors are in the legislation," Weisberg says.

U.S. District Judge Ralph Erickson told the jury last week that it could being deliberating the case by the end of this week.

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