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Tuesday, December 20, 2016

Wendi Adelson's Lawyer Lists Seven Reasons That 'Conclusively Establish Her Innocence' In Dan Markel's Murder — And Monitors Web Comments That May Give Rise To Defamation Actions Against Those Proclaiming Her Guilt

AdelsonFollowing up on my previous post, 'The Prosecution Does Not Believe That Wendi Ordered The Hit' On Dan Markel:  David Lat (Above the Law), The Dan Markel Case: Watch Your Words About Wendi Adelson:

[S]ome posters [on Websleuths] have criticized me because they disagree with my view that Wendi Adelson did not know in advance about the murder of her ex-husband Dan Markel and was not involved in planning it. ...

I am not a fan of Wendi Adelson as a person. She was perfectly nice the one time I met her in person, but I know from talking to Dan that she put him through hell. I thought that the way she handled the end of their marriage — taking the kids (and many of the marital possessions) and splitting while he was out of town, leaving behind a mattress with divorce papers on top — was just abominable. And I think it’s terrible — and terribly sad — that she has changed the names of her two children with Dan to remove all traces of him from their lives. (She changed their surnames from “Markel” to “Adelson” and also removed the middle name of one child who was named in honor of one of Dan’s late relatives.)

Why do I share all of this? To show that I have not come to my view of Wendi’s innocence — as to Danny’s murder (she might be guilty of other things) — lightly or without foundation. Also, as I’ve said before, I leave open the possibility that Wendi learned after the fact about how the murder came to happen, and I express no opinion on whether relatives of hers might have been involved. (The Adelsons maintain their innocence, of course, and are innocent in the eyes of the law until proven otherwise — and note that no family member has yet been charged.)

So why do I belong to what Websleuths posters have dubbed “Team Wendi-Not Involved”? It’s not because I’m stupid or ignorant of the law (I’m a lawyer with a still-active license), because I’m biased in favor of criminal suspects (I’m an ex-prosecutor), because I like Wendi as a person (I don’t), or because I find her attractive (I don’t play for that team). It’s because of the evidence — which every good prosecutor must follow.

I could restate my defense of Wendi, but I will instead share with you comments I received recently from her lawyer, John Lauro (also a former federal prosecutor, and a very talented and experienced trial lawyer). He made these comments to me on the record, i.e., intending them to make their way to people following and discussing this case. ...

“There is some commenting about Wendi that is highly irresponsible and reprehensible, coming from people who know nothing about the case,” Lauro told me. “Wendi is not a public figure, and it’s beyond the pale that people are coming after this young lawyer and single mom in an attempt to demonize her. We are monitoring and reviewing comments about the case to determine if any of them are actionable.”

Translation for laypersons: your Nancy Grace-style “Wendi is guilty” comments could make you subject to a defamation lawsuit. Just because you post under a pseudonym doesn’t place you beyond the reach of the law. Even though Websleuths and Jonathan Turley can’t be held liable for what their commenters post (thanks to 47 U.S. Code § 230), they can be forced by a court to turn over identifying information about posters, including email and IP addresses, if Wendi sues for defamation and a court deems the comments in question to be actionable. Lauro’s reference to Wendi not being a public figure, if accurate — one can argue over this (see my short law review article, Public Figurehood in the Digital Age) — means that a poster or commenter sued by Wendi would not get the benefit of the generous “actual malice” standard of New York Times v. Sullivan, which applies to public figures (think government officials and Beyoncé). Depending on the jurisdiction, you could be held liable for making negative and untrue comments about Wendi under a mere negligence standard — i.e., you were sloppy or careless or didn’t do enough research. ...

John Lauro shared with me seven points that, in his view, conclusively establish Wendi Adelson’s innocence as to Dan Markel’s murder. ...

2. Wendi received a subpoena to testify at the trial of Luis Rivera (before Rivera pleaded guilty). Under Florida law, a witness who testifies under subpoena gets automatic testimonial immunity — i.e., her testimony can’t be used against her in a future proceeding, directly or indirectly. (Forcing someone to testify about a crime and then prosecuting her for it would create an obvious problem with the Fifth Amendment right against self-incrimination.) So as a practical matter, prosecutors never send subpoenas to potential targets or subjects of an investigation; if they later prosecute that witness, determining what’s covered and not covered by the grant of immunity is a messy and complicated endeavor. “When you get a subpoena, that’s a great thing if you’re a defense lawyer,” Lauro said. ...

6. On the day that Danny was shot, Wendi spent some eight hours with law enforcement, without a lawyer representing her — even though, as a lawyer and law professor, she was well aware of her right to counsel. She answered every question put to her, didn’t hesitate in responding, and didn’t ask for the interview to stop. ...

One final point, from me and not from Lauro: as I’ve written before, if Wendi had been involved in the plot to murder Danny, she wouldn’t have written and podcasted about his death. She would have shut the heck up, drawing no more attention to the crime, in the hope that everyone would somehow forget about it and move on.

Prior TaxProf Blog coverage:

https://taxprof.typepad.com/taxprof_blog/2016/12/wendi-adelsons-lawyer-lists-seven-reasons-that-conclusively-establish-her-innocence-in-dan-markels-m.html

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Comments

One has to wonder if Lat and Lauro ever heard of the Streisand effect.

Posted by: JJ | Dec 20, 2016 1:17:16 PM

A reminder to "single mom" Wendi - as a lawyer, it's her moral and professional responsibility to see that the person(s) involved in her husband's murder are brought to justice, even if they are family members.

Posted by: Little Willie John | Dec 20, 2016 7:51:15 PM

Just so I fully understand this post...the part after you state your knowledge of how she was stupidly arrogant in the face of a looming court proceeding is that her lawyer's defense is that she wouldn't be stupidly arrogant in the face of a looming court proceeding? Did I get that right?

Posted by: RogueOne | Dec 20, 2016 8:26:52 PM

George Zimmerman, whose claim to fame was that he defended himself with a loaded gun when a petty hoodlum visiting from south Florida was grinding his head into the concrete, was deemed a 'public figure' and his suit against an NBC affiliate dismissed even though said affiliate doctored an audio tape quite self-consciously to injure Zimmerman's reputation. Somehow, I doubt people posting opinions about this insufferable woman are vulnerable to defamation suits on the merits (though they may be vulnerable to process-is-punishment on the odd chance that advocate Lauro isn't blowing smoke.

Posted by: Art Deco | Dec 20, 2016 9:41:55 PM

At her trial, "single mom" Wendi will ask for mercy because she is a widow.

Posted by: Little Willie John | Dec 20, 2016 11:13:41 PM

RE: Hell on Dan

Cripes. Sounds like how my divorce started. I was off in Germany and came back to an almost completely empty house. Found out that her boss/lover—who left his family of 20 years—paid for the moving van.

Posted by: Chuck Pelto | Dec 21, 2016 3:36:49 AM

I gave no opinion on her guilt, but this defense is unconvincing.

Does anyone think she would endure discovery to press a defamation claim? Me neither.

Posted by: Curmudgeonly Ex-Clerk | Dec 21, 2016 4:19:34 AM

Am I getting this right - David Lat is threatening commenters on an anonymous true crime message board. What a year.

Posted by: Robert | Dec 21, 2016 8:26:30 AM

"George Zimmerman, whose claim to fame was that he defended himself with a loaded gun when a petty hoodlum visiting from south Florida was grinding his head into the concrete..."

Is this the same guy who was advised by police during neighborhood watch training not to carry a weapon? And the guy who called the police to report his suspicions about Trayvon Martin and was told not to follow him and leave it up to the police? And was this the "thug" who was out buying skittles and a coke? Just asking...

Posted by: Ohreally | Dec 21, 2016 7:28:35 PM

Is this the same guy who was advised by police during neighborhood watch training not to carry a weapon? And the guy who called the police to report his suspicions about Trayvon Martin and was told not to follow him and leave it up to the police? And was this the "thug" who was out buying skittles and a coke? Just asking...

You're not asking, your trading in discredited memes. He bought the gun to defend himself against a neighbor's vicious dog. Florida is a concealed carry state and he's perfectly within his rights to carry a gun and his volunteering for neighborhood watch changes nothing. He was not patrolling the neighborhood that night in any case. He was never told by the non-emergency dispatcher not to follow Martin, merely that they did not need him to do that. He got out of his truck to keep Martin in sight, not to follow him. He lost sight of him before getting out of his truck and never regained sight of him He never chased Martin. He was loitering around on a walkway waiting for the police when Martin reappeared and accosted him. Martin had to walk 75 yards quite deliberately to get from where he had been to where Zimmerman was standing.

Another time, another place, liberals may stop systematically lying in order to defame people they despise a priori. Not in my lifetime, I suspect.

Posted by: Art Deco | Dec 22, 2016 7:40:24 AM

Wendi's lawyer trying to elicit sympathy for his client because she's a "single mom" gives new meaning to the term chutzpah.

Posted by: Barbara | Dec 27, 2016 5:43:14 AM