Third trial may not help prosecutors

Prosecutors can count on racking up more bills if they retry Wharton undergraduate Irina Malinovskaya for murder, but not on a better chance of a conviction, law experts say.

Malinovskaya's first-degree murder trial was declared a mistrial for the second time last Thursday after the jury announced a 6-6 deadlock. Prosecutors immediately said they plan to retry the case, though this decision is not yet definite.

A previous mistrial ended in February with an 11-1 vote in favor of acquittal.

Malinovskaya is accused of killing Temple university student Irina Zlotnikov in late 2004 in Delaware.

Experts said it is difficult to determine whether prosecutors are more likely to secure a victory during a third or fourth trial, because cases don't usually reach this point.

Philadelphia criminal defense attorney Patrick Artur said that although he has never seen a case go to more than three trials in Philadelphia, it has happened in other jurisdictions.

"There is no magic number," Artur said.

Legally, prosecutors can continue retrying a case until a definitive result is reached.

Penn Law professor David Rudovsky said that a judge may declare after three or four trials that to retry again would offend due process.

Penn Law professor Paul Robinson said another factor is cost.

"A natural constraint on any prosecutor is their fixed budget," Robinson said. "They must allocate their resources."

Malinovskaya's lawyer, Mary Burnell, said expert witnesses are a huge expense when taking into account airfare, accommodations and compensation for time.

She added that she thinks it is unlikely that a third trial will garner different results.

"The second jury took a lot longer and went through the evidence multiple times," Burnell said. "There is nothing left to test."

And, according to Robinson, it may not even come to that.

Robinson said that what a prosecutor says immediately after a trial is not always an indicator of whether the case will be retried.

In place of a retrial, the prosecutors could also decide to extend a plea offer or to try Malinovskaya for a lesser charge.

Burnell said that, although no plea offer has been extended as of yet, Malinovskaya's lawyers would not consider a plea to a lesser charge of homicide since no jury has been able to convict.

Malinovskaya remains in custody at the Baylor Women's Correctional Institution in New Castle, Del., where she has been held since her arrest soon after the murder.

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