A trial lives and breathes, with each one having a life of its own, its own unique personality with all its ebbs and flows. At any point in time during a trial, its participants can describe its status, with each side having directly opposing views as to how it is progressing. Those same views, can be one hundred and eighty degrees divergent from the day before. An attorney can describe the appearance of a trial in such grand hyperbole as his vocabulary allows and another, in good-faith, can offer to fall on his sword on behalf of his client, but to declare an abrupt halt to an ongoing murder trial, the sword must be one of tempered steel and not silicone rubber. For all the subjective opining will not overcome the one thing that will outlast all and that is the state of the record, the record will be the lasting detail that will be subject to appellate review.

In order to declare a mistrial this court needs to make a finding of Manifest Necessity. In Illinois v. Somerville, 410 US 458, (1973) The US Supreme Court invested trial Courts the authority to discharge a jury from giving a verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for such act, or the ends of public justice would otherwise be defeated. Courts are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.

The words "manifest necessity" appropriately characterize the magnitude of the burden. Nevertheless, those words do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge. Indeed, the key word "necessity" cannot be interpreted literally; Courts must assume that there are degrees of necessity and The Supreme Court requires a "high degree" before concluding that a mistrial is appropriate . As the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial is not one taken lightly or jeopardy shall attach. And as the Sixth circuit held in United States v. Gantley, 172 F.3d 422, (1999), "Manifest necessity" calls for analysis of each case upon its particular facts.

In Hylton v. Eighth Judicial Dist. Court, Dep't IV, 103 Nev. 418, (1987), The Nevada Supreme Court quoting State v. Eisentrager, 76 Nev. 437, (1960) stated that Circumstances constituting a manifest necessity to declare a mistrial should appear in the record. In Eisentrager, the Court stated that the mere fact, that counsel mentions evidence during opening statement which is later discovered to be inadmissible, does not mean that it is manifestly necessary to abort the prosecution and start over.

This court looks now a careful review of the record established so far in this trial.

Some seven months ago, on July 27, 2000 Mr. Amador took over this case from the public defenders office. At that time, a trial date of October 30, 2000 was set. On August 8, 2000 at the request of Mr. Amador a new trial date was set for January 29, 2001. Immediately thereafter this Court re-set a briefing schedule to insure that any and all pre-trial motions were taken care of well in advance of trial. Mr. Amador, although late, filed his motions, and devoted some time in attempting to have the Clark County District Attorneys office removed from the case, an attempt which was ultimately unsuccessful. Mr. Amador then petitioned this Court on October 5, 2000 for reasonable investigation and expert expenses under the Nevada Supreme Court Case Widdis v. Second Judicial Dist. Court, and this Court allowed him up to $20,000 for such needs. At which time he was told by the Court that should the need arise for more funds, to petition the Court, of which he had not done up to the time of this motion.

On December 15, 2000 Mr. Amador moved for a continuance of the trial date, and again this Court granted the defense a continuance until February 26, 2001. On February 12, 2001, Mr. Amador moved to have Attorney Tom Pitaro appointed in order to avoid any delays, and again, in order to accommodate Mr. Amador, this Court so appointed Mr. Pitaro to assist at the County rate of payment. This Court is mindful that Mr. Pitaro's original function was to assist, and not for him to be ready on every witness.

Additionally, Mr. Amador requested that just prior to trial, Ms. Rudin be allowed three out of jail visits to his office, in order for them to pour over the voluminous amounts of paperwork in which he represented to the Court could not be done within the confines of the defendants cell, again this Court accommodated such a request.

Opening statements commenced on March 2, 2001. On March 5, 2001, an in chambers meeting was held in which this Court was informed of an internal problem within the defense team wherein Ms. Rudin felt she was getting a fair trial but she would like Mr. Pitaro to take a role equal to that of Mr. Amador. The Court stated it would allow Defense Counsel a short continuance in order to have the necessary support in place and was informed by counsel that none was needed at that time but possibly at some point in the future.

On March 8, 2001, this Court held an In-Chambers conference to ensure that counsel did not need any additional time and that Ms. Rudin and her attorneys were content with the progress of the trial and that the Court would give them more time if needed. At that time I was informed by the Defendant that everything was on schedule and the attorneys had no problems. A copy of that transcript will be released following this decision.

On March 14, 2001, Ms. Rudin's sister testified, Mr. Amador asked her approximately six questions, the jury was excused and this Court heard arguments on the admissibility of certain evidence. On the morning of March 15, 2001, Ms Rudin asked for a mistrial. The transcript of such proceeding has been made available. In which she tells the Court that she felt Mr. Amador was not prepared and she has spoken to MrAmador'srs secretary and asked her to help prepare files on the Dona Cantrell case, which she feels is most important. And that there was no preparation as to what she felt needed to be presented as it relates to Dona Cantrell. Therefore, Ms Rudin decided to follow her instincts and ask for a mistrial, especially after being so frustrated and upset after her sister testified. Additionally, she was relying on statements made to her by the investigators who related to her that they feel they are not at the point they think they should be at in this case. She is also not happy that the Court is sometimes justifiably frustrated with the pace of the trial. One might also note that Ms. Rudin has made it a habit of changing and removing her civil and criminal attorneys at will.

The attorneys then explained to the Court that this is not a normal murder case, a forensic accountant should be utilized and that there are witnesses that need to be investigated. That the case is a complicated one, but not so complicated that Mr. Amador thought he would not be prepared for trial. Additionally, Mr. Amador points out that many of the witnesses that Ms Rudin suggested, would not be witnesses that actually would be called at trial, specifically pointing to issues with Dona Cantrell that Ms. Rudin felt should have been delved into but counsel did not. Also Mr. Amador stated he could not get the best investigators in town to handle the case with him and that the motion practice was extensive but that he prioritized certain areas as the case required him to do. He states that he feels he has done an excellent job in cross examining the witnesses but cannot guarantee such a job in the future. He stated that time is missing to follow up on issues that Ms Rudin raised and asked him to look into. He also stated he may have made some mistake in strategy. Mr. Amador, in open court and In Chambers, states that it is not a diligence problem, it is just a fact of life that there just wasn't enough time or money to do what needed to be done. He also states that he feels his opening statement has fallen below the level of Strickland that although having won every witness so far, there have been days and witnesses that he feels he could have done a better job.

Mr. Amador states that he spent an enormous amount of time and preparation using his absolute best efforts and did everything humanly possible. He commissioned an experienced homicide detective, expert witnesses on DNA and forensic pathology, handwriting and several other areas. In fact, in a major area, the defense (quoting) is "loaded for bear". He goes on to say that since he does not know what the States witnesses are going to say, how could he be prepared? All of the foregoing taking place outside the presence of the jury.

Mr. Amador, on behalf of Ms Rudin, asks this Court to declare a mistrial due to not being prepared, although he feels, they have won every witness so far in the case. And although he feels his opening statement fell below the standard, he is not willing to say his entire performance has, nor is Mr. Pitaro willing to comment on such.

The Supreme Court's conclusion in Strickland v. Washington 466 US 668, (1984) held that the sixth amendment right to the assistance of counsel is the right for "effective assistance of counsel" and was intended to protect the system . In the ideal adversarial system, opposing attorneys present the strongest arguments for their respective sides in equally competent manners and an impartial third party determines from those arguments "the best answers to the disputed questions of fact."

In the real world, however, the best that we can do is to ensure that opposing counsel provide approximately equal representations of their respective positions. In Strickland v. Washington the US Supreme Court formulated a standard of ineffective assistance of counsel that would unify the disparate approaches of the state and federal courts. Justice O'Connor developed a two-pronged test. In order to show ineffective assistance of counsel, a defendant first must show that the attorney's representation fell below "an objective standard of reasonableness." Second, a defendant must prove that the attorney's inadequate representation prejudiced the defendant. A defendant is prejudiced when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Nevada has adopted such a standard.

During its October 1992 term, in Lockhart v. Fretwell, the Supreme Court re-examined Strickland's prejudice component. The Court clarified that prejudice exists when counsel's errors render the proceeding fundamentally unfair or make the result unreliable, but only when counsel's errors deprive the defendant of a substantive or procedural right.

The United States Supreme Court has not articulated a firm standard for measuring competency of counsel but has left that task to the lower courts. The representation that counsel provides a criminal defendant must be "within the range of competence demanded of attorneys in criminal trials" in the surrounding legal community and must provide representation equal to "that of a reasonably competent attorney acting as a diligent, conscientious advocate.

The right to counsel insures that those who are criminally charged and tried actually receive the substantive and procedural protections provided by law and required by the Constitution. This right is a means of guaranteeing substantive and procedural fairness, and, insofar as these goals further it, accuracy of results. Considered with these constitutional values in mind, effective counsel is one who insures that a defendant receives the benefits of these protections and who tries the case so that the verdict will reflect a fair determination of the facts and a correct application of the law to those facts.

While there is often a direct relationship between these functions and the performance of the average criminal attorney, there is no necessary connection. An attorney's performance could fall well below the norms of practice established in this community even while he fulfilled these functions; by the same token an attorney might perform well above the local standards yet not fulfill them. In serving as the sole test for constitutional effective assistance of counsel, however, the "reasonably competent counsel" standards are founded on the assumption that the average attorney would fulfill these functions in a constitutionally adequate way.

Every criminal case is factually and contextually unique, and many variables affect criminal case verdicts. The weight and quality of the physical and testimonial evidence; the number, demeanor, and credibility of witnesses on each side; the style, character, and abilities of the prosecutor, defense counsel, and trial judge; the composition of the jury; and the character of individual jurors are all significant factors determining the course and outcome of a trial. A criminal defense attorney must deal with all of these factors, involving virtually innumerable assessments, judgments, decisions, and tasks. Determining whether trial counsel's performance in this complex context was ineffective under a reasonableness standard is complicated by two related considerations: the need to discount the effects of hindsight, and the latitude given counsel to make strategic and tactical decisions.

Trials appear in a different light after all the evidence is in and a verdict has been rendered. At that point it is possible to see that had counsel made different evidentiary, strategic, or tactical choices, the result might have been more favorable. The actual unfolding of the course of a trial is highly uncertain and contingent, however, and a trial attorney often must make decisions based upon what she knows or believes at the time the decision must be made. Reasonable decisions between competing trial options, made under conditions of uncertainty, and possibly reflecting the attorney's individual style, must generally be respected. The reasonableness of a trial attorney's decisions and actions must be assessed on the basis of the information available to the attorney at the time of choice. The "information available" language is expressly designed to focus a reviewing court's attention not only on the trial attorney's subjective state of knowledge, but on the objective issue of what information was reasonably within the capacity of the attorney to obtain. Thus the only appropriate reasonableness standard for reviewing trial choices made under conditions of uncertainty is: given what counsel knew or reasonably should have known, would a reasonably competent attorney have made the choice that trial counsel actually made?

As stated in United States v. Decoster, 624 F.2d 209, The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. As the US Supreme court held in United States v. Morrison, 449 U.S. 361, (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.

The Court in Strickland placed particular emphasis on both of these concerns. First, the Court stated that allowing for too intrusive an inquiry into counsel's assistance "would encourage the proliferation of ineffectiveness challenges. Second, the Court in Strickland noted the presumption that a criminal judgment is final.

Unfortunately, the ideal world of equally competent attorneys does not exist. Therefore, Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. As stated by US v Isaac, 456 US 107, (1982).

Moreover, this Court is of the belief that it is all the more difficult for judicial scrutiny to examine counsels defense during a trial, prior to any conviction, as such a standard would lead to a slippery slope of entanglement with thDefendant's's Sixth Amendment rights. As there are countless ways to provide effective assistance in any given case and even the best criminal defense attorneys would not defend a particular client in the same way.

As this Court has found no case on point, the Court looks to the case law as it relates to the circumstances in the case at Bar.

In BAYLOR v. UNITED STATES, 360 A.2d 42, The District of Columbia Court of Appeals found that although counsel's inexperience was demonstrated at trial by his apparent lack of familiarity with such matters as the procedure for impeaching witnesses, the process of qualifying an expert witness, the admission exception to the hearsay rule, and the procedure for refreshing a witness' recollection. Counsel vigorously defended his client throughout the trial, and although the Court questioned the wisdom of certain tactical decisions, found no showing of prejudice to the accused and concluded that the defendant had received effective assistance of counsel.

The Nevada Supreme Court in RILEY v. STATE, 110 Nev. 638, (1994 ) held that an attorney who was not apprized, prior to trial, of the existence of a witnesses hearsay statement allegedly inculpating another, was not ineffective for having failed to investigate a matter of which he was unaware. The Court went on to say that prejudice in an ineffective assistance of counsel claim is shown when the reliability of the jury's verdict is in doubt. Reliability is in doubt where the defendant can show that, but for counsel's errors, there is a reasonable probability that the result of the trial would have been different.

The Court examined the credibility of the defendants theory and found that given the evidence elicited at trial, the reliability of the jury's verdict did not appear to be in doubt. Stating that, even if counsel's conduct fell below the level of care expected of a competent defense attorney, the defendant had nevertheless failed to show that the jury's verdict is unreliable, and that he was prejudiced.

The Court refused to reach the issue of whether the failure to call an expert was deficient, and found the defendant's argument that expert witness testimony was "crucial" as highly speculative. The Nevada Supreme court found that the defendant failed to meet his burden -- to present an argument demonstrating the type and strength of evidence that might have been presented, and that there exists a reasonable probability that presentation of the evidence would have resulted in a different outcome at trial. The Court held that the claim of ineffectiveness for failing to hire or consult an expert was without merit, as he has failed to articulate prejudice in a persuasive manner.

The Ninth Circuit in GLAVIN v. UNITED STATES, 396 F.2d 725 (1968 ), held no prejudice when, on the day set for trial the attorney who had been retained by both defendants moved to be relieved of representation when the problem arose that one of counsel's two clients was dissatisfied and wished to replace him.

The Ninth Circuit found that the trial judge properly exercised his discretion in not allowing such a motion since counsel had represented the defendant for at least three weeks, the motion was presented on the day set for trial, no justification was offered for the lateness of the motion, and the court had been advised that the trial, scheduled to begin immediately, would require the appearance of nineteen witnesses, some from out of state, and would continue for four days.

Lastly, in DOUGLAS v. UNITED STATES, 488 A.2d 121 (1985), the Court of Appeals quoting the US Supreme Court case of UNITED STATES v. JORN, 400 U.S. 470 held that even when there is a high degree of necessity that would ordinarily justify a mistrial, the trial judge must determine whether an alternative measure -- less drastic than a mistrial -- can alleviate the problem so that the trial can continue to an impartial verdict. While the trial judge need not adopt an alternative that runs directly counter to a "legitimate state policy,"the judge should not resort to a mistrial when some other course of action can mitigate or cure the trial prejudice and thereby accommodate both the defendant's interest in retaining a particular jury and society's interest in just and defensible judgments.

This Court has found no authority, in the State of Nevada, which holds that an attorney involved in an ongoing criminal trial can be found to have been ineffective without a final judgment. For without finality, there can be no prejudice. Additionally, this Court finds, from the state of the record, no prejudice to the defendant has resulted at the present point. In fact to the contrary, as MrAmador'srs representations attest he has in fact been diligent in his duty to his client. It is not a perfect world and indeed, as the Nevada Supreme Court in Revuelta v State, 86 Nev. 587, (1970) quoted the US Supreme Court in Bruton "A defendant is entitled to a fair trial but not a perfect one." Ms Rudin has not been denied her rights under the Constitution, her attorney has used his best efforts, has focused on the areas he felt were important and discarded those that in his judgment were not. He has made strategic decisions as to what he felt was necessary to put on a defense. He has been afforded ample time and money, although by his representations, not enough. Also, Ms Rudin has been appointed an additional, most competent attorney, Tom Pitaro, to handle other areas of the case, something which the majority of criminal defendants have not had the benefit of. Additionally, this court takes note of Mr. Amador's experience as a trial attorney which dates back over twenty years.

There is no indication that the jury has been tainted in any way or will be unable to reach an impartial verdict . Additionally, there has been no fatal defect in the proceedings that would require automatic reversal of any conviction that may be obtained. This Court explored the possibility of simply pulling the plug and starting the trial over, however, as was stated in US v Crotwell, 896 F2d 437, in the absence of either of those or similarly compelling circumstances, concerns about judicial economy, cannot form the basis for a finding of manifest necessity or jeopardy will attach and Ms. Rudin could never again be tried for this crime.

As to Mr. Amador's representations that his opening statement was below the Strickland Standard, Courts seek to insure that juries reach verdicts based on the evidence, not on the basis of non-evidentiary information. Quoting from Gerry Spence in his opening statement in Silkwood v. Kerr-McGee, wherein he told the jury that an opening statement "is sort of like looking at a picture on the box of a picture puzzle box. The picture on the box is what the puzzle will look like when it is all put together"

Opening statements are not evidence .... Lawyers are not witnesses, and are not under oath. Nothing they say is evidence. If there was a Strickland standard for attorneys who were not as eloquent as Gerry Spence, there would not be many competent attorneys.

This Court would be setting a dangerous precedent, if after an attorney announced "Ready for Trial" he was allowed to throw in the towel because he felt his performance was deficient in some areas. There is no room in a Court system already clogged up, to grant attorneys the ability to stop a trial due to his or her perception of possible future performance. There is a need for finality in a system that is already second guessing itself.

There is no basis on the record before this Court, to make a determination of deficient conduct on the part of Mr. Amador, and that any deficient conduct affected the outcome of the proceedings and that any ineffectiveness was prejudicial to the defendant and if so that such conduct did not constitute harmless error.

Counsel, you have made your record. Courts, witnesses, and communities, rely on your representations when you announce "ready for trial". "Candor Toward the Tribunal" is a matter which may have to be taken up by another governing body. For as far as this Court is concerned, this trial will go forward.

However, this Court mindful of the representations as to time and money and of the Supreme Court in the Jorn decision (overturned on othegroundsds) , held a meeting with Mr. Pitaro and Mr. Amador, with the knowledge of the District Attorneys office, to address and discuss issues raised by defense counsel including specifically and foremost the financial issues as authorized under the Nevada Supreme Court case of Widdis v. Second Judicial Dist. Court, 114 Nev. 1224 (1998). In order to alleviate the problems addressed by the defense attorneys, so that this trial can continue to an impartial verdict, this Court will allow for the reasonable expenses of the investigation of this case as authorized under Widdis and for the retention of an expert. Additionally, this Court will allow the defense some additional time to prepare at the start of their case-in-chief and at a necessary point herein.

Based upon the foregoing, the Motion for Mistrial is DENIED. The trial of the State v. Margaret Rudin, case number C142448, is to resume at 1:00 pm.

The Honorable Judge Joseph T. Bonaventure Eighth Judicial Court Las Vegas, NV.

Al Lasso, Law Clerk