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Third Malinovskaya trial to start Thursday
Wharton student Irina Malinovskaya will begin her third trial Thursday for allegedly murdering her ex-lover's girlfriend.
Malinovskaya is accused of bludgeoning Temple University graduate student Irina Zlotnikov to death in the victim's boyfriend's Delaware apartment in December 2004.
Jurors voted 11 to 1 for acquittal in her first trial and split 6 to 6 in the second.
Legal experts say it's impossible to determine for which side, if either, the third time will be a charm.
Prosecutors declined to comment on the upcoming trial, and Malinovskaya's lawyer Eugene Maurer could not be reached for comment.
"It's not uncommon to get hung juries," Penn Law professor Paul Robinson said. "But a third trial is unusual."
Philadelphia criminal defense attorney Patrick Artur said he's seen only two or three cases in his career that went on to three trials, and that the a third trial may not be so different from the first.
He did note, though, that the potential for inconsistencies in the accounts of witnesses and the defendant increases the more they testify.
"She's on the record, and they can use that against her," Artur said.
Though there is no numerical limit to the number of trials one person can face for a single crime, "there's tremendous incentive on both sides to work on a plea agreement," Robinson said.
Prosecutors are often reluctant to pursue a third trial because of the time and resources it takes, Robinson said.
"That same cost that you spend on that third or fourth trial, you could spend on another case," he said.
But if prosecutors believe strongly in the defendant's guilt, the number of jurors on their side from past trials will not discourage them.
"When they know they have convinced at least one juror, they feel they are on ethical ground, and it almost becomes a challenge," said criminal defense lawyer Bruce Lehr of Miami, who has seen more than 350 criminal cases in his career.
The experts agreed that the jury breakdown of the past two trials has no bearing on the direction a third jury might sway.
Robinson said that if the third trial is 11 to 1 for conviction, a fourth trial is possible. If it is the reverse, he said, a court is likely to balk at the idea.
Though the decision lies in the hands of the prosecution, Lehr said judges can have a certain power of persuasion
After multiple mistrials, the defense could also pressure the prosecution to give up a case on the grounds of "abuse of discretion," Robinson said.
Prosecutors "can't be arbitrarily capricious. They can't be vindictive," he explained. "There is a limit. Where the limit is is a bit fuzzy."
In the meantime, Malinovskaya awaits her third trial at Baylor Women's Correctional Institution in New Castle, Del., where she has been in custody since her December 2004 arrest.
