Prosecutors respond to Rudin motion for retrial

Kim Smith

Friday, Aug. 17, 2001 | 11:18 a.m.

District Judge Joseph Bonaventure did everything he could to provide Margaret Rudin a fair trial, and the convicted murderer should not be granted a new trial, state prosecutors say.

Chief Deputy District Attorney Chris Owens made his comments in a 21-page response to Rudin's motion for a new trial. The response was filed late Thursday.

Rudin, 58, was convicted May 1 in the December 1994 shooting death of her millionaire husband, Ronald Rudin, 64. Her attorneys, however, are asking Bonaventure for a new trial on a number of grounds.

Bonaventure is scheduled to hear arguments from both sides one week from today. If he denies the defense's motion, Rudin will likely be sentenced to life in prison Aug. 31.

Deputy Public Defender Craig Creel argues that Rudin didn't stand a chance of a fair trial because of her lead defense attorney, Michael Amador's incompetence and Bonaventure's obvious disdain of Amador.

In support of Rudin's position, Creel attached to his motion a number of affidavits. Among them was one from Amador's former secretary in which she alleges Amador was a greedy, publicity-starved attorney who spent much of his time during the trial writing a book on the case, using drugs and hanging out with strippers.

Amador has repeatedly denied all of the allegations.

The public defender also said Bonaventure held impermissible private meetings with Rudin, thereby forcing her to waive her attorney-client priviledge.

Creel said that when Rudin complained about Amador's performance several days into the 10-week trial and asked for a mistrial, Bonaventure should have granted it.

Owens notes in his response that to prove an attorney is ineffective, a defendant must show that the attorney's performance was deficient and that the defendant was prejudiced by the deficiency.

Rudin and her attorneys failed to prove either prong, Owens said.

Their argument that Amador was ineffective was based primarily on Amador's opening statement and his less-than-stellar cross-examination of a key prosecution witness, Owens said.

Opening statements, however, are not evidence, and defendants shouldn't be granted mistrials simply because a particular witness has offered damaging evidence, Owens said.

"It was obvious to the court that the impetus for the defendant's request for a mistrial was damaging testimony from her sister," Owens said. "The court also noted defendant's history of firing attorneys at will."

Owens said Rudin's attorneys argue that they don't have to offer examples of ways in which Rudin was prejudiced by Amador's performance because the deficiency was so obvious.

Owens said he believes they should have to provide examples of such prejudice.

Owens didn't address each of the affidavits submitted individually. However, he said Rudin's entire motion relies upon general statements made about Amador.

"There are very few specific instances of incompetence noted," Owens said. "It's as if the defendant wants the court to read a few affidavits and then rule in its favor by some legal osmosis. A prejudice is not presumed. It must be demonstrated."

As for Bonaventure meeting privately with Rudin, Owens said the law allows for such meetings.

If a defendant is claiming his or her attorney is ineffective, the attorney-client privilege must be waived.

Quoting from a Montana case, Owens writes, "More important than the privilege granted to the attorney-client relationship are the effective administration of justice and the integrity of the fact-finding system in criminal matters."

Moreover, the attorneys for both sides had agreed ahead of time that there would be some private, or "ex parte" communications because Bonaventure needed to know certain things so he could keep track of expenses, Owens said.