dissenting:
I agree with the majority opinion, except I believe that a mistrial should have been granted when it was obvious that the defense was not prepared to try the case. I also believe that defense attorney Amador had a clear conflict of interest with his client and this too requires reversal and a new trial.
Amador’s lack of preparation and motion for mistrial
Concerns had been voiced about Amador’s preparation to try this major case prior to trial, but no one had anticipated what they would hear and see at the beginning of the trial. Amador’s voir dire was rambling, and he attempted to argue the facts of his case. The district court judge repeatedly admonished him to stop trying to argue his case during voir dire and warned Amador that he was going “to keep a close eye” on him. This was followed by an equally prejudicial opening statement by Amador.
Amador began his opening statement by declaring: “This is a great day. . . . [E]very day . . . can be a celebration. . . . This is a great day for me. This is a culmination of a career.” He then declared that he had thrown away most of his prepared remarks and launched into a disjointed argument that was interrupted numerous times by objections from the State, which the district court sustained. Finally, after yet another sustained objection, the district court judge stated to Amador:
Again, I keep saying this — and I let you get away with a lot, Mr. Amador — but the purpose for an opening statement is just to indicate what the evidence is going to tend to show and not go into your personal beliefs and your passion and soccer dad and yelling at the staff and whether you were a green lawyer and know all the cops and used to be a D.A. and you commu*147nicate differently. I never heard that in [an] opening statement in my life.
Amador also stated in his opening statement: “During the course of the trial, there may be objections and things like that. Don’t worry about it.” The district court judge interrupted: “I don’t know what that means: Don’t worry about objections. We have to do other things. I have no idea what that means. If there’s an objection, I’m either going to overrule it or sustain it and that’s the law.”
The opening statement of a criminal case is extremely important in asserting a successful defense.1 In fact, studies have repeatedly shown that the impression a juror has after opening statements usually carries with him or her to become the verdict in the case.2 For that reason, by the end of opening statements, Rudin was already at a great disadvantage even though no evidence had been presented.
Following opening statements, the State called as its first witnesses the two fishermen who found Ron Rudin’s remains at Lake Mohave, and then Rudin asked to see the district court judge personally about her defense. The extraordinary in-chambers meeting occurred on Monday morning, March 5, 2001, and was attended by the district court judge, his law clerk, the court reporter, and Rudin. Rudin stated that several friends were appalled with Amador’s opening statement, and she felt that because of personal *148problems, Amador was not prepared to try her case. The district court judge indicated that he would not comment on Amador’s opening statement but did admit that he did not interrupt Amador as often as he probably should have because he was concerned about it reflecting adversely on her. Sadly, it already had. She indicated that she did not want a mistrial, but wished that Pitaro would take a more active role in the case. Pitaro had been appointed shortly before trial to assist Amador with expert witness testimony so that a continuance would not be necessary. The district court judge indicated that he recently gave her attorneys permission to retain experts, and Rudin asked about her lay witnesses for trial. Rudin commented, “We haven’t even subpoenaed my witnesses yet. And I’m getting so nervous. I mean, I’m getting panicky.” The district court judge indicated that reasonable funds would be provided to subpoena her witnesses, and her attorneys then joined the conference.
Amador confirmed that he had substantial personal problems culminating when his wife and mother-in-law, who were his secretary and legal assistant, walked out of his office one month prior to trial and never came back. The district court judge then admonished Amador that the case was not about him, although that was all he had heard about in the pretrial motions and the opening statement. He also indicated that he had not been in favor of Amador doing this case pro bono, and that the case must be about giving Rudin a fair trial. Pitaro indicated that he was willing to assume a greater role in the trial, but warned the district court judge that he and the investigators had not had a chance to review voluminous files and financial records.
The prosecutors then joined the conference and were informed that Rudin wanted Pitaro to assume a more active role in the case. The district court judge commented that he was inclined to permit this to avoid a mistrial. The State was rightfully concerned that it had not been a party to the important discussion that had just occurred, and then asked if Pitaro could be ready to take an expanded role in the trial if the trial was continued a few days. Pitaro indicated that he would do the best he could since the district court judge had indicated the trial was going forward, but he did not know if he could be prepared to conduct a majority of the rest of the trial. He unequivocally stated that he was not prepared to try the case at that time.
The State was clearly worried about the lack of preparation by the defense team. ‘ ‘Already we have an appellate issue now, should they have hired a forensic accountant. And I mean they came into this thing hiring their experts two weeks before the trial and they didn’t start looking at the evidence until the day of trial. Two days into it, we still don’t have reports back for most of them.” And a *149little later, one prosecutor stated: “Mr. Pitaro is coming in now, he’s going to try to read the stuff and catch up. He already feels there’s certain things that should have happened that didn’t happen. . . . All I can say is we’re really uncomfortable with the record here.” The district court judge opined that there was an insufficient showing of manifest necessity to justify a mistrial.
The trial proceeded and the State called Dona Cantrell, Rudin’s sister. Cantrell was extremely important to the State’s case because she had been a confidant of Rudin’s and in close physical proximity to Rudin during the days surrounding Ron Rudin’s disappearance. Cantrell told of the secret electronic device Rudin had installed in her husband’s office, that she and Rudin had entered Ron Rudin’s office after his disappearance to secure some of his financial and business documents, and of statements Rudin made indicating that she had some knowledge of why her husband had disappeared. With only a circumstantial case facing Rudin, diminishing Cantrell’s testimony was critical to the defense, yet Amador was unprepared to do this on cross-examination. In fact, Amador only asked Cantrell six questions.
The State continued to present its case and it became obvious to Pitaro that the lack of preparation made it impossible to adequately represent Rudin as lead counsel. On March 15, 2001, Rudin requested a mistrial asserting that Amador was not prepared to continue with the case, which he admitted, and that Pitaro had joined the defense team too late to remedy the situation. Amador admitted his opening statement was inadequate and that he could barely keep his eyes open after giving his opening statement. He further admitted that he could have done a better job interviewing and investigating the State’s witnesses, and consulting with and retaining expert witnesses. Pitaro agreed that the defense’s case was not ready for trial and concurred that Amador should never have agreed to try the case. Pitaro declared at the hearing on the motion:
The fundamental problem that we have is this case is not ready to go to trial. For whatever reason it’s not ready, it’s not ready. That’s obvious to any observer of this case, that for the first two weeks this is not the way you try cases and this is not the way you try murder cases. . . . And what we are putting on in front of the world is a farce, and that disturbs me as an attorney. . . . [Tjhis has become a sham, a farce and a mockery. . . .
The State again expressed concerns about the state of the record, and the representation that Rudin had received. But, it was the State that then led the district court to make a critical legal error. The district court was led to believe that in order to avoid any *150problem with double jeopardy attaching, Rudin had to show that declaring a mistrial was a manifest necessity. The defense motion for a mistrial was denied because the district court found that Rudin had not shown sufficient prejudice to establish manifest necessity. However, a showing of manifest necessity is not required when a defendant moves for a mistrial because double jeopardy does not attach.3 In such a situation as Rudin presented, it was within the district court’s discretion to grant a mistrial if a fair trial could not be had.4 Thus, the district court applied an incorrect legal standard when it denied Rudin’s motion for a mistrial.
Further, the district court prematurely used the Strickland v. Washington5 standard to judge the ineffectiveness of Amador; this standard is inapplicable during trial. Strickland requires that before relief can be given, it must be shown that an attorney was deficient, and that the result of the trial would probably have been different but for counsel’s deficient performance.6 At this early stage of the trial, there was abundant evidence that Amador’s performance was substandard, but there was no result to assess. Therefore, the application of the Strickland standard to this situation was another legal error made by the district court, which the majority opinion seems to repeat. The district court was simply called upon to determine, in its discretion, whether Rudin had been prejudiced by Amador’s performance and lack of preparation to a point where a fair trial could not be had.
If this case had been a professional prizefight, they would have stopped the contest. Yet, the district court continued with the case and required an unprepared defense to soldier on, investigating as the case was being presented. As investigator Tom Dillard, a former detective for the Las Vegas Metropolitan Police Department, stated: ‘ T can say without hesitation that we . . . literally prepared the defense for the case hour by hour and day by day.” When the *151defense complained that it was impossible to do the investigation while the case was in progress, the district court appointed yet another attorney to the defense team.
Reaching the conclusion that Amador was totally unprepared to try this case did not require any advanced legal training — it was obvious to all. Columnist John L. Smith stated it this way:
It was agonizing to watch.
Anyone who has felt compassion for an animal caught in a steel trap can empathize with the painful predicament defense attorney Michael Amador found himself in Thursday afternoon in District Judge Joseph Bonaventure’s courtroom.
Metaphorically speaking, Amador was attempting to chew off his paw to escape the trap that is the Margaret Rudin murder trial. It’s a trap he had set for himself. Rudin is accused of the December 1994 murder of her husband, real estate developer Ron Rudin.
Amador tried in the most tactful language he could muster to admit to the court that he was hopelessly in over his head and needed Bonaventure to grant a mistrial. Courtroom observers had seen that day coming for weeks.
Amador, once a top local prosecutor and more recently a successful defense lawyer, appeared overwhelmed by this case, which he accepted without the usual fee arrangement. Some of his motions to the court were riddled with typographical errors and confusing digressions. Some of his rhetoric wandered so far off point that earlier last week Bonaventure finally lost his patience. When Amador wasn’t frustrating the judge, he was falsely accusing a prosecutor of lying.
In an effort to protect Rudin’s rights to a fair trial, a few weeks ago Bonaventure persuaded respected criminal attorney Tom Pitaro to join Amador on the defense. Private investigators Michael Wysocki and Tom Dillard were hired, but it was way too late.
During trial, the attorneys had met with Bonaventure more than once to discuss Amador’s preparedness and presentation. By Wednesday, Rudin had finally heard enough and wanted to make a change.
It was, after all, her name on the criminal docket.
Bonaventure didn’t allow Amador to exit gracefully.
“Do you know how much money was expended in this case, the thousands upon thousands of dollars?” Bonaventure asked. “Now, all of a sudden, we have three weeks — or nine days of testimony, your client says: T want a mistrial.’ And you say:
*152‘I’ve been doing good thus far, but I want a mistrial. I’m not prepared.’ ’ ’7
No defense of an open charge of murder should be required to investigate, prepare for, and try the case all at the same time. Basic considerations of fair play and due process require that every defendant charged with a serious crime be provided a competent attorney who is given sufficient time to prepare the defense.8 When it became obvious that the defense was not ready for trial and Rudin could not receive a fair trial, the district court judge should have heeded the concerns of both the State and defense counsel and granted a mistrial. The application of the wrong legal standards prevented the district court judge from doing so, and perhaps the concerns over wasted effort and the termination of the nationally broadcasted Court TV program were also factors. But, with this said, I do recognize and appreciate the impossible situation in which the district judge was placed due to Amador’s conduct. The district court judge did all he could to attempt to salvage the trial and still provide an adequate defense for Rudin. Unfortunately, the harm had already been done and this trial was not salvageable.
The jury deliberated seven days before returning a verdict of first-degree murder. Shortly after the verdict, a juror held an impromptu press conference on the courthouse steps and repeated the words Amador used in his opening statement: “In his opening remarks . . . Amador said, ‘This is a great day.’ I submit to you that today ... is a great day. Ronald Rudin, his family and the people of the great state of Nevada can [take] comfort in the fact that justice was served today.” There can be no doubt that Amador’s opening statement prejudiced the defense, and it remained with the jury until the end of the trial.
Motion for new trial and Amador’s conflict of interest
Following Rudin’s trial, the defense team filed a motion for a new trial and a fuller picture of Amador’s failure to prepare this case emerged. Amador had sought the appointment to defend Rudin without pay, pro bono, believing it would be the big case he needed to boost his legal career. He told numerous people that this *153was his big break, and he even repeated this in his opening statement. He agreed to defend Rudin in the criminal proceeding, and at the same time, filed a lawsuit on behalf of Rudin to cancel an agreement Rudin allegedly made with an individual to write a book about the murder case. When the district attorney’s office heard rumors that Rudin and Amador might be receiving media income from the case and that Rudin was not truly indigent, it brought this information to the district court’s attention. At the informal hearing in chambers on March 5, 2001, Amador and Rudin assured the district court that there was no such income being received. The district court judge seemed less concerned about the potential conflict of interest that might be present if Amador was involved in a book deal, and more concerned with whether anyone was receiving money from a book deal. Indeed, the district court judge instructed Amador to inform him if Rudin received any money from a book deal.
Amador apparently did little work on the case during the months after his appointment, except to create a website to broadcast the daily events of the upcoming trial, and then in November 2000, he left for a one-month European vacation. A new office assistant named Annie Jackson arrived about that time, and when Amador returned, he instructed Jackson to put the volumes of materials the office had received about the Rudin case in binders. It was her firm belief that Amador had not reviewed these voluminous files, and Pitaro expressed the same feeling about the materials during trial. Additionally, review of the records by Pitaro and the investigators became more difficult when Amador took many of the volumes of material with him when he checked into the 4 Queens Hotel at the beginning of trial. Besides performing little or no review of the voluminous documents, when Rudin was transported to Amador’s office for the purpose of preparing her defense, no preparation occurred. According to Jackson:
The first time Margaret was transported to the office, Mr. Amador ordered a bunch of food. Tom Pitaro came over and a writer from New York by the name of John Connelly was also there. It was just a social gathering. No work whatsoever with respect to the defense of the case was performed.
I later learned John Connelly writes for .the National Enquirer, and had done an article on Margaret Rudin back in December. This article had been done through Michael Amador’s connection with Mr. Connelly. I also learned that Michael Amador had some sort of an affiliation with WeaselSearch.com, which is the website that covered the entire trial.
The second week that Margaret Rudin was transported to our offices, 48 Hours was there and all their cameras were *154rolling. Nothing was accomplished with respect to preparing for the trial. 48 Hours was interviewing Margaret Rudin the entire time.
Ms. Rudin expressed her displeasure on the second occasion, as she wanted us to start working on her case. Mr. Amador kept telling Margaret that they would get to her case the next week.
As I recall, the third week Margaret was transported to our offices, Mr. Amador had arranged for a gentleman to come over to dye Margaret’s hair, cut it, and do her make-up. This was, without exaggerating, another insane free for all. Again, 48 Hours was there and Mr. Amador appeared, at least to me, more concerned with the media attention than with adequate preparation of Margaret Rudin’s case.
Jackson also elaborated on Amador’s personal problems. She confirmed that his wife and mother-in-law left the office a month before trial and that Amador then stopped coming to the office and apparently began cavorting with other women. Jackson explained:
Mr. Amador spent most of his evenings at strip bars, and in the company of strippers. In fact, on many occasions, he bragged about the many strippers he was dating. Worse, the strippers were calling and even coming over to the office during business hours when I was there. I personally recall one occasion when Mr. Amador even allowed one such stripper to go through and separate Margaret Rudin’s documents.
Jackson indicated that while preparing for trial, she saw several media rights agreements signed by Rudin, giving all media rights to Amador. In her testimony, Jackson stated that the day Amador was fired and returned to the office, he demanded that Jackson get the media contracts and put them in the safe. She indicated that she had seen the three book and media contracts between Rudin and Amador, but that Amador eventually took them. With regard to Amador denying that he had media contracts with Rudin, Jackson said that was a lie:
There is no other way to say the following: when Mr. Amador told the court that he did not have any book or movie contracts, he was lying. Michael Amador does have book contracts and movie contracts regarding the Margaret Rudin case. When we returned to the office after Mr. Amador made those false representations to the court, he asked me to grab all of the contracts so that he could put them in his little safe in the back closet. He told me, “I don’t want anyone to find out that I have these, then I’m sure they’ll be investigating and looking for these.’ ’
*155After hearing Jackson’s testimony, the district court should have been convinced of the need for a new trial. The evidence certainly indicated that Amador secured media rights while representing Rudin, which was a violation of the Nevada Rules of Professional Conduct.9 Amador was clearly more interested in obtaining information for his book and getting media attention than in developing Rudin’s defense. In fact, Jackson testified that Amador did not turn over several of Rudin’s files, containing diaries, witness statements, and pictures, to the public defender’s office because he thought he might need the information in the future. Amador’s behavior made it virtually impossible for Rudin to receive a fair trial, even with the addition of Pitaro to the defense team.
The effort Amador put into this case was largely driven by his desire for publicity and future media revenues. Doing this case pro bono put a serious economic strain on his solo law practice and most of his staff left the month before trial. Amador’s personal life was in shambles, and it appears as if he was having a major midlife crisis. All of these problems became Rudin’s problems, as was so painfully shown at trial.
This court has held that a defendant is entitled to legal representation free from any conflict of interest with his or her attorney.10 The majority correctly notes that Amador had a conflict of interest in this case, but then arrives at the surprising conclusion that the record shows that Rudin was adequately represented. Coupling the inherent prejudice created by being represented by an attorney with a conflict, along with the patent failures to prepare for a major murder case, failures which were very obvious as the trial proceeded, I can come to no other conclusion but that the prejudice was substantial and ongoing. The appropriate conclusion should be similar to the one reached in Clark v. State, cited by the majority with approval, which states that an attorney’s actual and substantial conflict of interest requires a reversal of the conviction and a new trial.11
The majority opinion indicates that the defense team was able to provide Rudin with the basics at trial, and that is true. The defense did make an opening statement, cross-examine witnesses, call witnesses on Rudin’s behalf, and make a final argument, but there *156was no way the defense could overcome the prejudice created by Amador in the early stages of the trial. The fact that a defendant’s attorney is participating in every aspect of the trial does not necessarily mean that the representation is adequate.
In fact, it was not until during the trial that two important facts were discovered by the defense team that countered two key points asserted by the State early in the trial. The State presented evidence that a large trunk that Rudin possessed had been purchased from a specific dealer and was missing from her antique shop after Ron’s disappearance — the inference being that Ron was carted off by Rudin in the trunk. The State also made much of the fact that Rudin did not report Ron’s disappearance and took no action to discover his whereabouts when he disappeared. These two points were driven home by the State early in the trial, and along with the other inculpating evidence, provided great momentum for the State’s case. Sometime during the trial, the defense team located the person who sold the trunk to Rudin and established that it was not a large humpback trunk, but one that was much too small to fit a corpse inside. The defense also located Barbara Orcutt, who indicated that Rudin was indeed concerned about Ron’s disappearance and had asked her right after his disappearance to organize a search in the Mt. Charleston area, where she believed Ron might have been. The State apparently had this information, but did not share it with the defense.
Toward the end of trial, this newly discovered evidence was brought to the district court’s attention, and the defense was permitted to present it. Once again, Rudin’s defense was put in a position of finding important evidence after the trial began and then belatedly presenting it to the jury. It is unrealistic to think that the jurors could have put out of their minds all the evidence and adverse events, including the continual admonishment of defense counsel by the district court judge; the bizarre opening statement; the constant continuances and delays throughout the trial, which I am sure were held against the defense; and the belated presentation of important evidence. These harmful events resulted from Amador’s conflict of interest and lack of preparation and now require reversal of this case.
CONCLUSION
I believe there is sufficient evidence in the record, without the necessity of post-trial proceedings, to establish that the defense was totally unprepared to try this case and that Amador had a substantial conflict of interest with his client. This was prejudicial to Rudin, and the result reached was unreliable.
In closing, I would like to observe that the practice of a district court judge meeting with a defendant without her attorneys being present is a dangerous one. The first meeting the district court *157judge had with Rudin is a good example. The district court judge asked Rudin if she wanted a mistrial, and she said no in large part because she was afraid of being reassigned to the public defender’s office. But this decision should be made by a client after consultation with a conflict-free attorney. Rudin also expressed concern that several favorable witnesses residing in Mexico had not been subpoenaed, to which the district court judge responded that he had not been contacted about expenses for lay witnesses, but would consider a reasonable request for such expenses. Again, a conversation best conducted with her attorneys present. A judge should only meet with a defendant without attorneys present in rare situations where an emergency is presented.12 Compliance with this rule should be scrupulously observed.
For the reasons expressed, I would reverse Rudin’s conviction and remand the case for a new trial.
See Harvey J. Lewis, One Trial Lawyer’s Perspective, 48 La. B.J. 93, 93 (2000) (noting the importance of opening statements because studies have shown that, in four out of five cases, jurors at least tentatively decided a case after hearing opening statements, and the jurors did not change their minds after hearing the evidence); Thomas A. Mauet, The New World of Experts in Federal and State Courts, 25 Am. J. Trial Advoc. 223, 224 (2001) (noting that jury research shows that opening statements are very important because at this early stage of a trial jurors are much more influenced by what lawyers tell them); Barry McNeil & Portia A. Robert, War Story: An Interview with Judge Barefoot Sanders, 28 Litig. 43, 48 (2002) (observing that the opportunity to give the jury the right impression of a case comes with the opening statement); Matthew J. O’Connor & Nicholas B. Schopp, Opening Statement Restriction Lifted? Are the Scales of Justice Tipping Back to Even After State v. Thompson?, 58 J. Mo. B. 35, 36 (2002) (“The profound impact of opening statements in a criminal trial is without dispute.”); Shari Seidman Diamond, Scientific Jury Selection: What Social Scientists Know and Do Not Know, 73 Judicature 178, 182-83 (1989/1990)'(noting that “[t]he structure provided in opening statements helps the jury organize the evidence and guides the jury’s thinking during the trial”).
See Harry Kalven, Jr. & Hans Zeisel, The American Jury, 23 Am. J. Trial Advoc. 203, 203 (1999) (observing that studies have shown that 80 percent of jurors make up their minds after opening statements); see also James W. Quinn, The Mega-Case Marathon, 26 Litig. 16, 20 (2000) (“Most experts agree that the jurors’ first impressions from opening statement can be powerful influences at the end of the case.”).
See Benson v. State, 111 Nev. 692, 695-96, 895 P.2d 1323, 1326 (1995) (observing that a defendant’s motion for, or consent to, a mistrial removes any double jeopardy bar to reprosecution unless the prosecutor intended to provoke a mistrial); see also United States v. Pollack, 640 F.2d 1153, 1155 (10th Cir. 1981) (noting that the general rule is that when a defendant in a criminal proceeding moves for a mistrial, he thereby consents to retrial).
See Mortensen v. State, 115 Nev. 273, 281, 986 P.2d 1105, 1111 (1999) (noting that reversal is warranted because the district court abused its discretion in denying a motion for a mistrial); see also People v. Silva, 21 P.3d 769, 788 (Cal. 2001) (observing that a district court should grant a mistrial when a defendant’s chances of having a fair trial have been irreparably damaged); Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996) (noting that a mistrial may be granted when prejudicial events occur during the trial process).
466 U.S. 668 (1984).
Doyle v. State, 116 Nev. 148, 154, 995 P.2d 465, 469 (2000) (citing Strickland, 466 U.S. at 687-88, 694).
John L. Smith, Attempt at a Graceful Exit from the Rudin Trial Painful to Watch, Las Vegas Review Journal, Mar. 18, 2001.
See Young v. District Court, 107 Nev. 642, 649, 818 P.2d 844, 848 (1991) (“Defense counsel assumes a vital role in the preservation of a constitutional system of criminal justice that guarantees fundamental fairness to defendants who stand in jeopardy of losing life, liberty or property.”); see also Brescia v. New Jersey, 417 U.S. 921, 924 (1974) (Marshall, J., dissenting from denial of certiorari) (observing that opportunity for adequate preparation is an absolute prerequisite for defense counsel to fulfill his constitutionally assigned role of seeing to it that the State proves its case and raising any available defenses).
See SCR 158(4) (“Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to representation.”); see also Model Rules of Prof’l Conduct R. 1.8 cmt. 3 (1998) (observing that an agreement by which a lawyer acquires literary or media rights concerning the conduct of the representation creates a conflict between the client’s interests and lawyer’s personal interests).
Coleman v. State, 109 Nev. 1, 3, 846 P.2d 276, 277 (1993).
108 Nev. 324, 326, 831 P.3d 1374, 1376 (1992).
NCJC Canon 3B(7)(a) (stating that “[w]here circumstances require, ex parte communications for . . . emergencies ... are authorized”).