Experts: Conviction unlikely for Malinovskaya in retrial

Experts say a third trial for Irina Malinovskaya is unlikely to win a conviction for the prosecution - and some even suggest that the defense will have a better chance at an acquittal.

Criminal-defense attorney Patrick Artur and Penn Law professor David Rudovsky said yesterday that, by the time a criminal case reaches its third trial, prosecutors have usually had an adequate chance to convict the accused.

"If the state can't convict [the suspect] in two trials, I think it's fair to say that, maybe, that's the limit," Rudovsky said.

He added that there are exceptions to this rule, although they are rare.

Malinovskaya, a Wharton undergraduate, is being charged once again with the first-degree murder of Irina Zlotnikov, a graduate student at Temple University, Delaware state prosecutor Bill George said.

Her first trial ended last February with a hung jury, 11-1 in favor of acquittal. A second trial in October ended with another hung jury, this time in a dead heat, at 6-6.

Artur said that a retrial "does not enhance the prosecution's chances normally," and that in fact it is more likely to improve the case for the defense.

With each new trial, "the witnesses start having multiple statements and multiple versions of reality that create multiple contradictions," he said.

And those witness inconsistencies, Artur said, "give the defense more ammunition."

Barring these inconsistencies, neither Rudovsky nor Artur expected new facts to be introduced during a third trial.

"You can pretty much expect to hear the same testimony," Rudovsky said.

Artur, however, did not completely rule out the possibility of new witnesses.

"Sometimes [through] the publication and notoriety of the case," he said, "you get people coming out of the woodwork."

He added, however, that "that's not usually the case."

And if the prosecution is not successful the third time around, they may not get another chance to take Malinovskaya to court, Rudovsky said.

"I think the jury would ask the judge to bar any further trial," he said.

Delaware state prosecutor Bill George did not specifically state that new evidence would be brought to court, but he did not rule out the prospect of new facts being introduced.

"I would simply say the investigation is ongoing," George said.

But to the prosecution, the difficulty in convicting Malinovskaya may not lie in a lack of evidence at all.

State prosecutor Victoria Witherell said Monday that jurors may be reluctant to convict Malinovskaya because they do not want to believe that a woman committed such a violent crime.

Experts, however, dismiss this claim as an invalid explanation of the prosecution's failure to convict after two trials.

Both Artur and Rudovsky said that jurors reach a verdict based upon evidence, never upon preconceptions about gender.

"I've never seen" gender bias in a jury, Artur said.

Malinovskaya's lawyers would not return repeated calls for comment.

Please note All comments are eligible for publication in The Daily Pennsylvanian.