ELYRIA — Attorneys trying to win a new trial for Tina D’Agostino, who is serving an eight-year prison term for shooting her boyfriend in 2010, have accused her trial lawyer of failing to provide an adequate defense, pointing to her giving birth months before as a possible reason.
The trial, D’Agostino’s attorneys, Mike Duff and Matthew Bobrowski, wrote, had been scheduled to begin on April 30, 2012, but a delay was requested because trial attorney Jenifer Berki “was on medical leave due to a difficult surgical child birth and was unable to prepare or proceed with the trial.”
The trial was rescheduled for Oct. 1, 2012.
“It is the contention of Petitioner that at the time of trial, Attorney Berki’s physical and mental difficulties continued to be an impediment to her ability to render effective of counsel,” the motion for a new trial said.
Several affidavits from D’Agostino’s family were included with the motion, including one from her mother, Marcia Mendolera, who wrote that Berki appeared “visibly nervous” and her hands shook.
“My daughter mentioned to me that Attorney Berki’s hair was falling out and there were gobs of hair on the back of her jacket and skirt,” Mendolera wrote. “I then looked at Attorney Berki and made the same observations. She appeared to be suffering from an undisclosed, unknown physical ailment.”
Berki said her hair wasn’t falling out at the time of the trial and that her hands were shaking because of medication she was taking, something she told the jury.
“I thought my defense was very effective and aggressive,” she said.
Berki also pointed out that during the course of the trial and beforehand, D’Agostino and her family were highly complimentary to her.
“She said she had faith and that God put me on the case,” Berki said.
Berki also said that despite complaints from D’Agostino’s family about the time she and an associate invested in trial preparation, she had met with her client and witnesses many times. She also said that because witnesses were not allowed to be in the courtroom while other witnesses testified it would be difficult for them to know how she questioned people on the witness stand.
“They’re grasping at straws,” Berki said.
D’Agostino’s family also complained that Berki asked them how she was doing throughout the trial and that Berki’s mother, who was in the courtroom, said it was her daughter’s first domestic violence trial. Berki said while it might have been her first domestic violence trial, she’s tried cases before, including felonious assault and murder cases.
Lorain County Assistant Prosecutor Stephanie Malanowski also defended Berki’s representation of D’Agostino.
“Although the trial did not have the outcome Petitioner may have hoped for, this adverse result does not indicate ineffective counsel,” Malanowksi wrote.
A jury found D’Agostino guilty of felonious assault, domestic violence and authorized use of a motor vehicle for the Feb. 27, 2010, shooting of Steven Augustus.
Following an argument on that day, Malanowski wrote, D’Agostino locked herself in a bedroom and Augustus, who had just taken a shower, tried to get inside. When she refused to open the door so he could get his clothes, Augustus got tools and opened the door. When he got inside the room, D’Agostino shot him and fled.
Berki argued during trial that D’Agostino was a battered woman and entitled to defend herself, but Duff and Bobrowski argued that she didn’t present that point effectively and didn’t properly prepare or question witnesses, including a defense expert on battered woman syndrome.
Bobrowski said Tuesday that he and Duff can’t say for certain that postpartum issues were the cause of the problems they perceive with Berki’s trial performance. That issue, he said, needs to be explored further by talking more to witnesses.
“She did have some issues that may have impacted her representation of Ms. D’Agostino,” Bobrowski said.