Merits of motion to dismiss unclear

It's uncertain if Wharton undergraduate Irina Malinovskaya's recent motion to dismiss murder charges against her will succeed, legal experts say.

Malinovskaya, who allegedly bludgeoned her ex-boyfriend's then-girlfriend to death in 2004, has already been tried three times, each resulting in a mistrial. Delaware prosecutors are deciding whether to try her a fourth time in hopes of reaching a verdict.

Malinovskaya's lawyers, however, have sought to have the charges dismissed, filing a motion saying that yet another trial would be unfair, according to The Delaware News Journal.

"Trial by jury as guaranteed by the state and federal constitutions should not be transformed into a series of 'practice rounds' allotted to the state until they get it right or are able to finally find 12 jurors who agree with their contentions," Malinovskaya's lawyers wrote in the motion.

Prosecutor Paul Wallace and defense lawyer Eugene Mauer could not be reached yesterday to comment on the motion.

Lawyers not affiliated with Malinovskaya's case expressed mixed views on the motion's chances for success.

"It's hard to know at what point it is some kind of abuse of discretion" to continue trying a defendant, said Penn Law professor Paul Robinson. Furthermore, he continued, since few cases result in so many mistrials, there is little legal precedent that applies to Malinovskaya's situation.

"It's only an acquittal that triggers double jeopardy," Robinson said. Since Malinovskaya has not yet received a verdict, trying her a fourth time would not on its own violate her constitutional rights.

"There are all kinds of reasons" that defendants seek to dismiss cases, said Philadelphia criminal defense attorney Patrick Artur, from legal precedent if applicable to their situation to deals made among judges and attorneys to a defendant's wish for a case to be resolved.

However, "just telling the prosecutor to dismiss [because Malinovskaya has already been mistried three times] without citing case law seems like a poor argument," Artur added.

Malinovskaya's case has taken abrupt turns lately.

A change-of-venue request to move the case to another county in Delaware was granted in mid-February due to the level of publicity surrounding the case, but was withdrawn by the defense in early March.

Defense lawyers also filed a request to remove themselves from the case, and Delaware Superior Court Judge James Vaughn granted that request for attorney Joe Hurley in late February.

Prosecutor Paul Wallace said last week that Vaughn is expected to rule on the motion to dismiss within the next week or two.

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