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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Wednesday, February 22, 2017

Lawyers For Adelsons, Magbanua Attack Prosecution's Case Against Their Clients In Dan Markel Murder

Markel SuspectsOrlando Sun Sentinel, 'That's What We Went to Go Kill That Man For': New Details Emerge in FSU Professor's Killing:

No one in the Adelson family has been arrested or charged in the case. The family, through its attorneys, has denied any involvement in Markel's death. "There is a reason that the police have not arrested any of the Adelsons — they weren't involved in Dan's death,” according to a statement released in August 2016 by attorneys representing the family.

David Oscar Markus, Charlie Adelson’s attorney, said Friday: “Even though Charlie wasn't involved, the prosecution has run a smear campaign against him and his family by using alternative facts created by people with quite a bit of time on their hands.” ...

Christopher DeCoste, one of Magbanua’s attorneys, said his client has done nothing wrong. "The prosecution created a theory fit for a soap opera, built a case around that preposterous plot using the wholly unreliable word of a thug as mortar, and peddled it through the media without mentioning any of the massive inconsistencies,” DeCoste said in a statement. “Before they turned Luis Rivera, a lifelong gangster, into their snitch, the threadbare circumstantial evidence wasn't even enough to arrest Katie.” ...

Magbanua’s attorney said prosecutors “had to buy” some evidence from Rivera at the cost of an incomprehensible deal to support their theory. “As payment for his perjured testimony they removed his head from the guillotine and with credit for good time served — if he can manage — he'll do a meager few years on top of the 12 years he's already doing for a federal sentence,” DeCoste said. ...

John Lauro, Wendi Adelson’s attorney, said there’s no way Rivera would have seen Adelson with her children that morning. He said police went back and pulled the daycare records, which showed Adelson’s sons were in school at the time Rivera claims he saw them. “Wendi had absolutely nothing to do with these tragic events. The efforts of Rivera to tie Wendi in fell completely flat on its face,” Lauro said. “His statements are not to be believed.” Lauro added: “He did what he had to do to get a seven-year sentence in a murder case, which is unheard of.”

While detectives have openly speculated that Markel’s former in-laws had something to do with his death, his ex-wife has not been the focus of their investigation, as reflected in dozens of police documents in the case.

Chief Assistant State Attorney Georgia Cappleman told the Tallahassee Democrat in October that she hasn’t been able to confirm that part of Rivera’s story.

Cappleman also told the Tallahassee Democrat she didn’t believe Rivera knew everything about the plot, but his testimony was one step in getting closer to charging other suspects. “[Rivera] has limited information, but I still think it was absolutely necessary to get that information to move forward against Katie,” Cappleman told the Democrat. “Katie has the ability to implicate other parties that are involved.” ...

Magbanua’s attorney said the inconsistencies in Rivera’s story came up during cross-examination during a hearing in December. “Lead investigator Craig Isom agreed that through Rivera they have only four pieces of evidence against Katie. Each one of these pieces was found to be impossible when juxtaposed to other testimonial and physical evidence. Investigator Isom himself said that he does not trust Luis Rivera,” DeCoste said. 

DeCoste said even Cappleman has acknowledged to the media that there are some inconsistencies in Rivera’s statement, but that his overall story is in line with her theory. He added: “So the fact that he's not reliable — making up facts — or credible — thug trying to get a deal — doesn't matter as long as he's saying what they want him to say, and, what they need him to say? “Her circular reasoning is offensive, especially for a governmental agency that must be objective,” DeCoste said. “Prosecutions like this are the root cause of the cases we see overturned years later."

Tallahassee Democrat, Prosecutors: Who's Paying Magbanua's Legal Fees?:

Prosecutors hope to unravel the tangled web of suspects investigators said are linked to Dan Markel’s shooting to learn who is paying the legal fees of accused conduit Katherine Magbanua.

In court filings Monday, state prosecutors hope to find out how Magbanua is paying for two private Miami attorneys without an apparent source of income. Assistant State Attorney Georgia Cappleman points to co-conspirators in the murder-for-hire-plot.

But Magbanua's attorneys Tara Kawass and Christopher DeCoste say their client's legal fees are being paid by her immediate family, who has gone into financial hardship to protect her. "They’re wrong on their theory of the murder just like they're wrong on their theory of who's paying for Katie's defense, which is her immediate family," DeCoste said in an email. "They’ve gone into their savings, into their retirement accounts, causing financial hardships, all in order to protect Katie from a wrongful conviction at the hands of an overzealous prosecution. In time their suspicions of the murder will be disproved just like the offensive suspicions that Tara Kawass and myself are focused on anything other than our duty to Katie."

The filing seeking the source of Magbanua's legal fees comes on the deadline for prosecutors to demonstrate why Magbanua should continue to be held without bond. ...

David Oscar Markus, Charlie Adelson’s attorney, said not only have prosecutors smeared his client and his family’s name, but they have implied a backdoor agreement for legal fees. “Even though Charlie wasn't involved, the prosecution has run a smear campaign against him and his family by using alternative facts created by people with quite a bit of time on their hands,” Markus wrote in an email. “And now, realizing that they don’t have real evidence, they are using an old prosecutor trick of going after the lawyers. But we have nothing to do with Katie’s legal fees. If the prosecution would have just called and asked, we would have been happy to tell them. Instead, it’s file first, ask questions later.” ...

Rivera's testimony is unreliable, DeCoste said, to the point that investigators have turned a blind eye to the truth to prove the case they have established. "The real conflict of interest here is the prosecution is more ‘interested’ in proving their theory than finding the truth and it’s ‘conflicting’ with their judgment," DeCoste said. "The case against Katie is nothing more than the prosecution speculating as to how the murder went down and supported only by the unreliable word of a lifelong gangster. That evidence was recently put to the test, the cracks are massive and the prosecution is now desperate, willing to do anything, attack anyone, to hold it together."

Above the Law, The Dan Markel Murder Case — Defense Attorneys Dismiss It All As Fake News:

When the history books look back on this glorious epoch, one suspects that the twin concepts of fake news and alternative facts will surely shame our descendants miserably. ... [W]hat’s really interesting about this story is how artfully the attorneys defending the unindicted folks seize the cultural moment and run with it. ...

I’m old enough to remember when “fake news” was a term applied to right-wing clickbait about Obama’s birth certificate — which is to say I’m older than 3 months — but somehow, while no one was looking, it’s been brilliantly and forcefully reappropriated as a slur against the mainstream media. Some people dismiss this script flipping, but it’s a masterwork. These folks took over the lexicon and shaped it to make their story the default “reality” set in contrast to the “fake” news. That’s just stellar work.

Whether or not Charlie Adelson was involved in this killing isn’t the point. Kudos to Markus for reading the zeitgeist and jumping on the phrase “alternative facts” before a clever prosecutor pointed out that stringing together “alternative facts” is literally the job description of a defense attorney. “Alternative facts” should be the mantra of prosecutors (at the very least, prosectors in reasonably Blue areas of the country) for years — tagging the defense with all the baggage the jury has with the term every time an attorney asks the jury to consider “couldn’t it have happened differently?” But Markus is on it. He’s flipping that script. And his fellow defense attorneys piled on.

That a pair of career criminals would drive hundreds of miles to assassinate a law professor who just happens to be involved in a dispute with the employers of the gunman’s girlfriend? What random happenstance!

Update:  WCTV, Prosecutors File Motion to Reveal Who's Paying Magbanua's Attorney Fees:

Tuesday night, we reached out to Magbanua's attorneys for comment. One of her attorneys, Christopher DeCoste, sent us the following statement:

"The real conflict of interest here is the prosecution is more ‘interested’ in proving their theory than finding the truth and it’s ‘conflicting’ with their judgment. The case against Katie is nothing more than the prosecution speculating as to how the murder went down and supported only by the unreliable word of a lifelong gangster. That evidence was recently put to the test, the cracks are massive and the prosecution is now desperate, willing to do anything, attack anyone, to hold it together. They’re wrong on their theory of the murder just like they're wrong on their theory of who's paying for Katie's defense, which is her immediate family. They’ve gone into their savings, into their retirement accounts, causing financial hardships, all in order to protect Katie from a wrongful conviction at the hands of an overzealous prosecution. In time their suspicions of the murder will be disproved just like the offensive suspicions that Tara Kawass and myself are focused on anything other than our duty to Katie,” said DeCoste.

Prior TaxProf Blog coverage:

http://taxprof.typepad.com/taxprof_blog/2017/02/lawyers-for-adelsons-magbanua-attack-prosecutions-case-against-their-clients-in-dan-markel-murder.html

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Comments

Please keep updating us on this, fascinating case...

Posted by: Vill | Feb 22, 2017 6:35:00 AM

The best criminal defense is a good offense? Next will be a reward for anyone who finds the real killer...

Posted by: AMTbuff | Feb 22, 2017 7:23:21 AM

Defense lawyers can play offense all they want, but I think they'll make little headway altering the public's perception of this case. Markel was murdered by hired killers. Someone paid them. And the rest of the story writes itself. Unless the defense can show a more likely employer or discredit the entire murder-for-hire premise, they are not going to change minds. Those are the only possible alternative facts that matter.

Posted by: Curmudgeonly Ex-Clerk | Feb 22, 2017 8:17:53 AM

Katherine should have opened the door and spoke to the Federal agents.

Donna should have called the police and made a report about the crazy stranger (undercover agent) asking for money about something he vaguely attempted to explain but, not explain.

Related to their ex son in laws murder or not .... weren't they at least curious what that situation was all about?

If hands clean ... did they never stop and think or wonder if the 'stranger' was possibly a murderer .... at the very least dangerous?

If it didn't worry them at all ... then okay ... maybe that sort of thing happens all the time in Miami? But, obviously it bothered them .... hence all the phone calls. But, none to police to help them figure it all out?

Posted by: John Smith | Feb 22, 2017 11:59:09 AM

Everyone knows there are no coincidences in criminal law.

Posted by: Nancy Grace | Feb 25, 2017 10:58:58 AM