Despite three hung juries in the murder trial of Wharton student Irina Malinovskaya, experts say a fourth trial is still a distinct possibility.
Lead prosecutor Paul Wallace declined to comment on the possibility of a fourth trial, but experts say the state could take the rare step of retrying Malinovskaya for a third time.
"The prosecution is making progress every time," Penn Law professor Paul Robinson said. "They've invested so much, now they probably think, well, why not?"
Jurors failed to come to a unanimous decision last Thursday, splitting 8 to 4 in favor of conviction for first-degree murder and 10 to 2 for second-degree murder.
The first two trials also ended in hung juries, the first 11-1 in favor of acquittal and the second split 6-6.
Malinovskaya was accused of bludgeoning to death Temple University graduate student Irina Zlotnikov, the girlfriend of Malinovskaya's ex-lover, Robert Bondar.
There is no legal limit to how many times the prosecution can retry a defendant after a mistrial, though questions of due process and costs arise after repeated trials.
Fourth trials are extremely rare, but Delaware attorney Joseph Gabay said he's not sure what to expect from this case given that it has reached unmarked territory in other respects.
The 11-day jury deliberation was one of the longest in Delaware history, for example.
Former Delaware prosecutor Peter Letang, however, said he highly doubts that the case will be tried again.
"I have tried murder cases three times, and that's a stretch," Letang said.
If there were a fourth trial, Robinson said the chance of a conviction is "not insignificant" considering the trend toward a guilty verdict as the trials have progressed.
However, Robinson added that "the next time around is probably their last shot."
Malinovskaya's former defense attorney, Mary Burnell, said a fourth trial could be considered "cruel and unusual punishment," especially since Malinovskaya has been held in custody for nearly three years.
"It's time to move on," Burnell said. "Justice has more than run its course."
Letang added that by pursuing numerous trials, prosecutors are "wearing [Malinovskaya] down physically, mentally and financially."
Malinovskaya was convicted of tampering with physical evidence, a result of her fabricating an e-mail during the second trial. If Malinovskaya is not re-tried, she would likely be deported to her native country, Russia, because her status as a convicted felon would make it extremely difficult to re-apply for a visa.
"It's frustrating," Burnell said of the entire case. "You always hope that there can be a resolution."
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