An Ohio woman who survived for nearly two years after being covered in flames at a gas station in 2015 — leaving her with burns on about 90 percent of her body — was able to testify against her accused attacker before she died last summer.
On Friday, a judge ruled that her recorded testimony can be used at the upcoming murder trial of Judy Malinowski’s 42-year-old ex-boyfriend Michael Slager, PEOPLE confirms.
Slager’s defense attorney Mark Collins says he believes the decision is a first for the state and possibly the nation.
“She may be the only victim to testify in their own murder trial,” he says.
Ron O’Brien, the Franklin County prosecutor, said not being able to use the testimony would not have crippled their case, “but certainly we think it enhances our ability to present what happened that day,” according to the Columbus Dispatch.
Malinowski’s testimony was reportedly recorded five months before she succumbed to her injuries, following a January 2017 court order allowing her to be deposed under civil procedure.
An attorney for Slager was present at the time and, according to local TV station WCMH, two-thirds of her testimony was cross-examination by the defense — a fact the judge noted in ruling it admissible at the murder trial.
What’s more, the judge said, Malinowski underwent extensive mental examination finding her competent before she testified.
Malinowski’s mother, Bonnie Bowes, said she was “so grateful that Judy can tell her story … She went to her grave thinking that the judicial system would unseal her side of the story,” the Dispatch reports.
“Judy fought to tell her story,” Bowes said, according to WCMH. “I think it’s the first step towards what her legacy should and will be.”
Bowes said that in her deposition Malinowski “was extremely frail and she was burned, but yet could very clearly articulate what happened, where she was, fear, everything that you would expect. I’m so proud of her and I know one day I’ll see her, although my heart will be forever broken without her.”
• Want to keep up with the latest crime coverage? Click here to get breaking crime news, ongoing trial coverage and details of intriguing unsolved cases in the True Crime Newsletter.
The Defense Reacts
“It is what it is,” Collins said after the Friday ruling, according to WCMH. “[The judge] gave a detailed account of what he believed the rules and the case law shows. Whether we disagree or not is not a big deal. We move forward and keep preparing for the case.”
Speaking with PEOPLE, Collins declined to address the contents of Malinowski’s deposition but confirmed the Friday ruling allows prosecutors the option of using it.
He says it remains unclear which parts they may seek to share with the jury and whether it will be a central part of their case (which he says would make an appeal more likely) or merely be used to rebut the defense.
There were many objections registered by the defense during Malinowski’s testimony and the trial judge will have to sort through those in deciding which parts of the deposition are specifically usable, Collins says.
The defense had argued that because the testimony was taken under the rules of civil law, Slager’s attorneys were not allowed to prepare adequately for their cross-examination.
Nonetheless, Collins says, there were some “positive things” in the deposition.
Prosecutors did not immediately return a message seeking comment on Saturday.
The Case So Far
Malinowski, a mom to two daughters, died on June 27 at 33 having never recovered from what authorities said was an arson attack by Slager, then her estranged boyfriend, on Aug. 2, 2015.
Prosecutors have said that Slager doused Malinowski with gasoline before using a cigarette lighter to catch her on fire while they were at a gas station in Gahanna, Ohio, three years ago.
A 911 caller at the scene said they appeared to have been arguing beforehand, according to the Dispatch.
The witness reported that Slager used a fire extinguisher to try and put out the flames and an attorney for him previously called it an accident.
Collins, Slager’s defense attorney, says they will vigorously dispute that the fire was intentionally set.
Court records show that in December 2016, Slager pleaded no contest to the three criminal charges he faced while Malinowski was still alive: aggravated arson, possession of criminal tools and assault.
He was sentenced to 11 years, the maximum, with a year’s credit for time already served.
Once Malinowski died, however, a grand jury indicted Slager in October on charges of murder and aggravated murder, to which he pleaded not guilty. If convicted of the most serious charge, he could receive the death penalty.
He remains behind bars pending trial, which is set to begin in July.
“She showed unbelievable strength over the last two years,” Malinowski’s mom told PEOPLE not long after her daughter’s death. “I really don’t know how she did it.”
Bowes said last year that Malinowski’s decision to testify meant she “had to back off her pain medications,” but that didn’t stop her.
“It was important to her that she stand up to him in whatever way she could,” Bowes said. “She said in the video that ‘no human being should hurt like this — not even the devil should feel this kind of pain.’ ”