Posted March 19, 2001 at 10 a.m. EST
Rudin rolling mistrial dice  
   

Margaret Rudin was labeled the "Black Widow of Las Vegas" by the media after being charged with shooting and decapitating her rich, unfaithful husband. But, on Thursday, Rudin told the judge presiding over her murder trial that her biggest problem these days is her lawyer.

Judge Joseph Bonaventure is scheduled to rule Monday whether Michael Amador's defense of the 57-year-old former socialite has been so ineffective that fairness dictates that he grant Rudin's request and pull the plug on the three-week-old trial.

Observers of the bizarre mistrial hearing held Thursday put the odds at 70 percent that Bonaventure will put a halt to the proceedings when he takes the bench at 2:30 p.m. ET.

But like any gamble in Vegas, it is not a safe wager.

The judge instructed the jury to return Monday at 4 p.m. ET when he will do one of two things: Bonaventure has indicated he will either dismiss the panel and thank the 12 jurors and six alternates for their service or order the trial to proceed after giving the defense time to get its act together.

Amador did not give Bonaventure a lot of reason to grant a mistrial during back-to-back presentations offered Thursday — first on the record in Bonaventure's chambers and later in the courtroom, where prosecutors Gary Guymon and Chris Owens have been presenting largely circumstantial evidence in the case since February 26.

Amador's basic argument is that Rudin deserves a new trial because he is not ready to cross-examine forensic witnesses yet to testify, the defense investigators need more time, and all the money Bonaventure approved for defense expenditures is gone.

Amador conceded that his opening statement was weak and that it appears that he was unprepared for prosecution witnesses who have testified that Rudin had both motive and means to kill 64-year-old real estate mogul Ronald Rudin. The lawyer stopped short, however, of telling Bonaventure that his shortcomings have so far damaged his client's chances of acquittal.

During the in-chambers discussion Thursday, Bonaventure said it would be difficult for him to base a mistrial ruling on the fact that the defense was ill-prepared to defend Rudin.

"I can't base a motion for mistrial based upon investigators, [or that] they say they need more time, need more money," Bonaventure said, according to the official transcript. "We are in the middle of a trial. I can't base a motion for mistrial on that."

If the judge denies Rudin's request, however, his own comments from the bench about Amador's lack of preparation and filing of important pretrial motions could provide fodder for an appeal in the event the trial resumes and Rudin is convicted of murder and eavesdropping. Rudin mentioned Bonaventure's admonishments of Amador in chambers Thursday.

"I think that the jury is somewhat tainted by the things they have heard and the reprimands," Rudin said.

Bonaventure disagreed.

"Every reprimand I gave was outside the presence of the jury, I don't know if you know that," the judge is quoted in the transcript as saying. "I say something and I say, 'Let me excuse the jury.' Then I go into my, perhaps, reprimand ... but that's neither here nor there."

What a judge says in front of a jury, however, can be here and there in terms of an appeal. Rudin said she feared Bonaventure's statements in front of the jury about Amador being late, unprepared and too concerned about doing media interviews could lead her to spend the rest of her life in prison if something isn't done.

"I believe all the reprimands you've given have been mostly justified too," Rudin said. "I don't think you were out of line to say the things that you did. You said them because you were concerned about the issues and that made me concerned more about the [mistrial] issue."

After Rudin waived attorney-client privilege, Amador defended his representation of his pro bono client as the best he could, he said, given the time and resources he had after Rudin asked to dismiss her public defenders last year.

In open court, Amador said Thursday that he felt he "won" every prosecution witness during his cross-examinations so far. That statement alone could make it difficult for Bonaventure to declare a mistrial. An alternative is to allow Amador to withdraw and grant a lengthy continuance to permit co-counsel Tom Pitaro to take over the defense.

Pitaro, who was attending the funeral of a close lawyer friend Wednesday as Margaret Rudin's sister was testifying that Rudin spied on her unfaithful husband and talked of divorcing him, said he knew the defense was not ready for trial all along.

"When I initially got involved in this it was my belief the case was not ready to go trial ... I was overruled on that," Pitaro said in Bonaventure's chambers. He added later, "The lady is not getting a fair trial because it's not ready ... So is this case ripe for a mistrial? Yeah."

Discussing Amador's shortcomings and lack of preparation was not a pleasant thing to do, Pitaro said, but necessary in order to justify a mistrial. He added that Amador's intentions were good but suggested the lawyer, who recently became separated from his wife, bit off more than he could chew.

"What we are putting on in front of the world is a farce, and that disturbs me as an attorney because I'm a participant in it," Pitaro said. "I do the best I can and everyone does the best they can, but this has become a sham, farce and a mockery."

Amador defended his work so far but said that Rudin deserves a new trial because he's not ready for the remaining witnesses on the prosecution's list, which includes as many as 70 witnesses.

"I don't like having to hear my name and my reputation discredited by what appears like a lack of preparation, as if nothing has been done," Amador told Bonaventure. "Just the opposite. Although we've spent more time than I could have possibly imagined in preparing for this case, we probably made a mistake in terms of the time spent in some areas when it should have been spent on witness preparation."

Bonaventure said he would review the record and case law before ruling Monday, but did not like the idea of halting a trial costing the taxpayers more than $150,000 merely because the defendant thinks she is losing and wants a new start.

Nevada case law concerning ineffective assistance of counsel, however, appears to give Bonaventure a legal basis to grant the mistrial motion should he choose to do so. Derived from a U.S. Supreme Court ruling in Strickland v. Washington, a 1984 case, the Nevada Supreme Court standard provides a two-pronged test.

"First, [the defendant] must show that counsel's performance fell below an objective standard of reasonableness ...," the Nevada court ruled in a 1997 case. "Second, he must demonstrate actual prejudice; that is, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

For Bonaventure's purposes, the "reasonableness" prong may have been satisfied by Amador's concession that he did not make a sufficient inquiry — or conduct sufficient investigation — into the information pertinent to Rudin's defense. But because the case has not gone to the jury and Rudin has not been convicted, Bonaventure need not determine that there was "actual prejudice," the second prong of the Nevada Supreme Court test, in order to grant the mistrial.

Regardless of what he decides, Bonaventure told Rudin in chambers Thursday that he does not like the notion that she can just ask for a new trial just because she doesn't like how things are going.

"A defendant doesn't have a right to control the court and whatever you want goes, you understand that?" he asked Rudin. "That wouldn't be a proper way to handle trials."

"I'm not trying to," Rudin responded.

Court TV's Mary Jane Stevenson contributed to this story.

 

 
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