DA wants life sentence for killer
Consiglio:?Rodgers is ‘not rehabilitatable’
HOLLIDAYSBURG — Blair County District Attorney Richard Consiglio is asking for a life without parole sentence to remain intact for James “Frankie” Rodgers, who has been incarcerated 30 years for murdering an Altoona man in 1988.
Because Rodgers was 17 years old when he stabbed and killed Pasquale J. Lascoli, Rodgers is eligible to be sentenced again based the U.S. Supreme Court’s Miller v. Alabama ruling. In the 2012 decision, the high court concluded that mandatory life without parole for crimes committed by minors amounts to cruel and unusual punishment, a violation of the Eighth Amendment.
At a court hearing Wednesday, Consiglio said he intends to ask that Rodgers be resentenced to life in prison. That is an option during a resentencing hearing, as long as notice is given to the defense. Consiglio said he will be putting his decision in writing.
“This person is not rehabilitatable,” Consiglio said.
Federal Public Defender Kirk J. Henderson, who represents Rodgers, declined comment on Consiglio’s decision to seek another life sentence. When asked about Rodgers’ potential for rehabilitation, Henderson said he would address that during the resentencing hearing.
But before a resentencing hearing is scheduled for the 47-year-old Rodgers, now incarcerated at the State Correctional Institution at Somerset, Senior Judge Daniel Howsare must rule on a defense motion for updated DNA testing. Henderson has a pending request for using the latest DNA testing procedures to examine the blood evidence found on Lascoli’s trousers and gray sweater.
In a petition seeking the retesting, Henderson proposed that the blood found on Lascoli’s trousers came from a test tube of Rodgers’ blood and not directly from Rodgers. But in a response to that petition, Assistant District Attorney Nichole Smith criticized the petition for including “no actual evidence” in support of that claim.
Consiglio is also on record against the DNA testing because he said it has no purpose for the upcoming resentencing procedure.
Rodgers has already been tried and convicted and any challenges to those procedures should be handled through the Post-Conviction Relief Act, Consiglio said.
Henderson has advised Howsare that DNA testing of the trial evidence will put him in better position, at Rodger’s resentencing, to address the degree of Rodgers’ culpability, the nature and circumstance of the offense and any threat to public safety that the defendant poses.
But Penn State
associate professor Frank Dorman, while testifying Wednesday, expressed doubt about the accuracy of such testing which involves 30-year-old evidence that has been in a storage area with no environmental controls.
The defense has contended that updated DNA testing methods will determine if blood found on Lascoli’s pants contains evidence of trace compounds. If it does, then the results will support their position that the blood was inside a test tube before it was put on Lascoli’s pants to incriminate Rodgers.
But Dorman said he would disagree.
“To say that because this (trace compound) was found here and that it came from there, that’s an awfully large leap,” Dorman said.
To back up his position, Dorman used hand lotion as an example of something that comes from a source and is typically put on a person’s hands. But if the hands touch the pants, evidence of the lotion can be found on the pants without identifying the lotion’s origin, he said.
While cross-examining Dorman, Henderson proposed development of a protocol to be followed in the DNA testing of trial evidence. Henderson also suggested Dorman could be involved in a protocol that the judge could authorize through a court order.
But Dorman said he
couldn’t do that because it would require a second pair of a 30-year-old pants that accurately reflect the environmental conditions in 1988.
Dorman also cast doubt about testing 30-year blood samples, which may have changed over the years.
If the trial evidence was stored in an area of the courthouse basement with limited temperature control, that would affect the evidence, Dorman said. When Smith asked if basement flooding and humidity would affect the samples, Dorman readily agreed.
“I think that could be a really big deal,” Dorman said.
Henderson arranged for a forensics investigator from West Virginia to counter Dorman’s proposed testimony, but Howsare didn’t permit her to testify. The judge said that the defense had already offered its position through an expert who testified in early July.
But Howsare is allowing the attorneys to submit briefs in defense of their positions. He indicated that his future ruling will address the DNA testing request and whether it should be a factor in a resentencing hearing or handled through post-conviction proceedings.
Mirror Staff Writer Kay Stephens is at 946-7456.