Following 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:
- Man Arrested In Murder Of Dan Markel (May 26, 2016)
- Dan Markel Killing Investigated As Murder for Hire, 5-6 More Arrests Expected (May 26, 2016)
- Update On Murder-For-Hire Investigation Into Dan Markel's Death (May 31, 2016)
- Police: Dan Markel Was Killed In Murder-For-Hire Plot Orchestrated By Ex-Wife's Brother (June 2, 2016)
- Anatomy Of The Hit On Dan Markel (June 4, 2016)
- Update On Murder-For-Hire Investigation Into Dan Markel's Death (June 6, 2016)
- Wendi Adelson Discusses Her Ex-Husband Dan Markel's Murder: Transcript And Commentary (June 8, 2016)
- Dan Markel's Law Prof Colleagues Finger Ex-Wife's Family In Murder-For-Hire Killing (June 10, 2016)
- Update On Murder-For-Hire Investigation Into Dan Markel's Death (June 13, 2016)
- Grand Jury Indicts Two Hit Men In Dan Markel's Murder, State Attorney Expects More Indictments; Girlfriend Of Ex-Brother-in-Law Denies Ex-Wife's Family's Involvement (June 18, 2016)
- Update On Murder-For-Hire Investigation Into Dan Markel's Death: In Defense Of Charlie Adelson (June 21, 2016)
- Update On Murder-For-Hire Investigation Into Dan Markel's Death: Hit Men Thwarted In Previous Attempt To Kill FSU Law Prof (June 27, 2016)
- Update On Murder-For-Hire Investigation Into Dan Markel's Death: Charlie Adelson Denies 'Any Involvement' (July 3, 2016)
- Lawyer Denies Adelson Family's Involvement In Dan Markel's Murder, Fingers Florida State Law Students, PrawfsBlawg Readers As Possible Suspects (July 18, 2016)
- Today Marks Two Year Anniversary Of Dan Markel's Murder (July 18, 2016)
- The Adelson Family (Through Their Attorneys) Deny Any Involvement In Dan Markel's Murder (Aug. 3, 2016)
- Prosecutors Seek Records Showing Wendi Adelson's Brother Paid For Breast Enhancement Surgery For Mother Of Hit Man's Children After Dan Markel's Murder (Aug. 20, 2016)
- Judge In Dan Markel Murder Case Approves Subpoena To See If Wendi Adelson's Brother Paid For Breast Implants For Mother Of Hit Man's Children (Aug. 23, 2016)
- Police Video Released Of Wendi Adelson Being Told Of Dan Markel's Murder, Says Her Brother Joked About Hiring A Hit Man (Aug. 27, 2016)
- FBI Interview With Ex-Girlfriend Of Dan Markel's Ex-Brother-in-Law/Mother Of Hit Man's Children (Aug. 28, 2016)
- Adelson Family Will Not Be Charged In Dan Markel's Murder Despite Circumstantial Evidence Released By Police (Including $1 Million Offer To Allow Children To Move To Miami, Communication And Money Trail To Hit Men) (Sept. 9, 2016)
- Police Reach Out To Feds As Tensions Flare With Prosecutor Over Decision Not To Charge Adelson Family In Markel Murder; Ex-Brother-in-Law Discussed Killing Undercover Agent (Sept. 10, 2016)
- ABC News To Feature Dan Markel Murder Case On Friday's 20/20 Program (Sept. 14, 2016)
- Last Night's ABC News 20/20 Program On The Dan Markel Murder: In-Laws & Outlaws (Sept. 17, 2016)
- Judge Denies Change Of Venue In Trial Of Markel's Alleged Hit Man; Defense Seeks Testimony Of Other Possible Perpetrators (Sept. 29, 2016)
- Katherine Magbanua (Mother Of Hit Man's Children, Worker In Adelson Dental Practice, Girlfriend Of Charlie Adelson) Charged With Murder of Dan Markel (Oct. 2, 2016)
- More On Katherine Magbanua's Arrest In Dan Markel's Murder (Oct. 3, 2016)
- Plea Deal For Hit Man In Dan Markel Murder (Oct. 4, 2016)
- Prosecutors Zero In On Adelson Family After Plea Deal With Hit Man, Arrest Of Accomplice In Markel Murder(Oct. 5, 2016)
- Hit Man Implicates Wendi Adelson In Dan Markel's Murder (Oct. 11, 2016)
- Update: Hit Man Implicates Wendi Adelson In Dan Markel's Murder (Oct. 12, 2016)
- Wendi Adelson's Attorney Questions Credibility Of Hit Man's Statement Implicating Ex-Wife In Dan Markel's Murder (Oct. 13, 2016)
- Dan Markel's Parents Discuss With Prosecutors Emergency Placement Of Their Grandchildren Upon Forthcoming Arrests Of Adelsons (Oct. 14, 2016)
- Update On Dan Markel Murder Investigation (Oct. 15, 2016)
- More Details Emerge Linking Adelson Family To Dan Markel's Murder (Oct. 18, 2016)
- What Wendi Adelson's Novel Reveals About Dan Markel's Murder (Oct. 19, 2016)
- The Dan Markel Murder Investigation: Why Was Katherine Magbanua's First Degree Murder Charge Reduced To Second Degree Murder? (Oct. 25, 2016)
- CrimeStoppers Reduces Reward For Tips In Dan Markel Murder Investigation From $25k To $3k (Oct. 26, 2016)
- Wendi Adelson's Novel: Art Imitating Life? (Oct. 27, 2016)
- Experts Expect Charlie And Donna Adelson To Be Charged In Dan Markel's Murder (Oct. 30, 2016)
- The Dan Markel Murder: Fascinating Details About The Adelson Family Dynamics (Nov. 4, 2016)
- The Dan Markel Murder Case: Who Is (Or Was) Paying The Killers' Attorneys' Fees? (Nov. 13, 2016)
- Prosecutors To Seek First Degree Murder Charge Today Against Katherine Magbanua In Grand Jury Proceedings In Dan Markel's Murder (Nov. 29, 2016)
- Grand Jury Charges Katherine Magbanua With First Degree Murder In Killing Of Dan Markel (Nov. 30, 2016)
- Katherine Magbanua Pleads Not Guilty To First Degree Murder In Killing Of Dan Markel, Trial Set For February; Prosecutors Still Hope She Will Implicate Adelsons (Dec. 7, 2016)
- Judge Denies Bond For Katherine Magbanua, Charged With First Degree Murder In Killing Of Dan Markel (Dec. 11, 2016)
- Does The Prosecution Believe (And Can It Prove) That Wendi Adelson (And Not Charlie Or Donna) Hired Katherine Magbanua And Sigfredo Garcia To Kill Dan Markel? (Dec. 14, 2016)
- 'The Prosecution Does Not Believe That Wendi Ordered The Hit' On Dan Markel (Dec. 17, 2016)