Decision on 4th murder trial expected soon

Prosecutors are expected to decide later this month whether to try Wharton undergraduate Irina Malinovskaya a fourth time for first-degree murder.

"Presently, we are waiting for motions to be filed by the defense," Delaware prosecutor Paul Wallace said.

Wallace declined to specify the exact nature of these motions but did say some had already been filed and attorneys for Malinovskaya - who is accused of having killed her ex-boyfriend's then-girlfriend in December 2004 - had until today to file the rest.

The prosecution will determine whether to try Malinovskaya a fourth time after a judge hands down a decision on the motions. Wallace said a decision should be made quickly, though he could not give an exact timeline.

Eugene Mauer, Malinovskaya's attorney, did not return a phone call for comment regarding the motions or the possibility of a fourth trial.

Malinovskaya's third trial ended in November with a hung jury, just like her two previous trials.

Her first trial ended in February 2006 with the jury 11-1 in favor of acquittal; the second ended in October of that year with a 6-6 deadlock and the third ended last November after an 11-day deliberation, with the jury 10-2 in favor of conviction for second-degree murder and 8-4 for first-degree murder.

Though it would be unusual for prosecutors to try Malinovskaya again, experts say it is still a possibility.

"There aren't any fixed rules about how many times they can try," Penn Law professor Paul Robinson said. "As a practical matter there seems to be some limit, and they're probably getting close to it."

Although prosecutors would not be allowed to retry Malinovskaya had she been acquitted due to double jeopardy restrictions, they can try her indefinitely if there continues to be a hung jury.

"If they've got the resources and they think it's serious - which they seem to - they will keep going until they get a verdict," Philadelphia criminal defense lawyer Patrick Artur said.

However, "retrials generally . make the defense stronger [and] the government's case becomes weakened. The defense has seen it all before and knows what to hammer in the opening and what to hammer in the closing," he added.

This hasn't been true in Malinovskaya's case, though, as the jury has become more supportive of a guilty verdict each time.

While Malinovskaya's rights to due process will not be violated if she is tried again, experts say more trials may harm the prosecution's public image.

"The prosecutor's office is going to look like a persecutor's office if they try her one more time and she walks away with a not guilty," Artur said.

Until a decision is reached, Malinovskaya will remain in custody at the Baylor Women's Correctional Institute in Delaware.

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