GUILTY FL - Dan Markel, 41, FSU Law Professor, Tallahassee, 18 July 2014 - #6 *arrests*

[BSBC]

rbbm.
Updated 3:01 p.m. ET May 28, 2019
DCA to decide whether Wendi Adelson can be deposed
"Appeals judges will hear arguments Wednesday on whether to let stand a protective order allowing Wendi Adelson to skirt a deposition subpoena by the attorneys of a woman accused of killing her ex-husband.

Kristen Kawass, an appellate attorney for suspected Dan Markel murderer Katherine Magbanua, will argue that Adelson — whose family has been implicated in but not charged for orchestrating the July 2014 shooting — should speak with the defense team prior to testifying at trial."

"The oral argument is set for 11 a.m. Wednesday at the First District Court of Appeal in Tallahassee"

The Court of Appeal has posted all the briefs and other documents in this appeal. The issue in the appeal is narrow: KM is appealing the trial court's order granting WA's motion to prevent KM from taking WA's deposition before KM's trial. WA is arguing that there's no point in making her show up for a deposition, because she will refuse to answer all substantive questions, as is her Fifth Amendment right. WA's brief in the appeal states that she "intends to cooperate fully and testify at trial"; her testimony at trial cannot be used against her later (except for a potential perjury prosecution), per a FL statute.
19-1875 - First District Court of Appeal

The appellate argument should also be available here:
Live Video Oral Arguments - First District Court of Appeal

 

[kay74]

So KM appealing this means what? This is blowing my mind.

 

[BSBC]

So KM appealing this means what? This is blowing my mind.

It just means KM wants the Court of Appeal to reverse the trial court, and order WA to sit for a deposition before KM's trial. KM's attorneys want a preview of WA's testimony so they are not surprised at trial. But WA is arguing that it's pointless for her to show up for a deposition at which she's just going to refuse to answer all substantive questions on Fifth Amendment grounds. Whether or not there's a deposition, WA will testify at trial and can't plead the Fifth, because of the FL statute that says that testimony can't be used against her later (except, if she lies, to prosecute her for perjury).

BTW, this whole notion of depositions in a criminal case is pretty unusual. Most states don't allow depositions in criminal cases (or only do in special circumstances, like where the witness is sick and might die before trial), and attorneys in criminal cases routinely have to question witnesses without any preview of their testimony.

 

[kay74]

So KM wants WA to testify. WA is going to say she did not know anything about the killing. How does KM think that's going to help her?

 

[clearskies1]

So KM wants WA to testify. WA is going to say she did not know anything about the killing. How does KM think that's going to help her?

The State subpoenaed WA to testify at trial -- so the State wants WA's testimony, not KM. Normally in Florida both sides can get pre-trial testimony by deposition so they generally know what the witnesses will say at trial. (No trial by ambush). KM doesn't want to be surprised at trial when WA testifies pursuant to the State's subpoena and so wants to depose WA before trial.

 

[BSBC]

So KM wants WA to testify. WA is going to say she did not know anything about the killing. How does KM think that's going to help her?

I have no clue what testimony KM thinks she's going to elicit from WA that will be helpful to her defense. Bigger picture, I have no clue what KM's defense will be. Here are some possibilities:

1. I had absolutely nothing to do with any plot involving SG, LR, and the As.
2. I was involved with some plot involving that group, but I had no idea it involved killing DM.
3. I was involved in the plot to kill DM, but only because someone (CA? SG?) forced me to.

I'm sure there are others that I'm not creative enough to come up with.

 

[dotr]

Hoping this great big convoluted mess will be cleaned up and the Markels get to spend time with their grandchildren very soon. rbbm.
‘Over My Dead Body’ podcast: Slain Florida law professor’s father, sister say they ‘pray and hope’ for justice
March 7 2019
“I would say that we have faith in the justice system,” said Shelly. “There’s a trial upcoming and we pray and hope every day that the justice system will do its work, the investigators will have done their work and will do their work so that the case will get resolved and all those that have perpetrated the crimes will be brought to justice… We hope [the case] will be resolved the right way with the justice system working its course.”

Markel and Shelly said they do hope “Over My Dead Body” will keep Dan’s memory alive, but also raise awareness in their love and willingness to be reunited with his children.

(The Markel Family)

“We desperately want to see the children,” said Markel. “We desperately want to have contact with them. We want them to know that there is a Markel family that they are a part of… They had a father who loved them dearly, tremendously…. Even as a law professor, he made a special effort every day to spend lots of time with them. I don’t know what they remember. I don’t know what they will remember. We just hope and pray there is another way of communicating with them.”

“We want them to know of his amazing legacy,” added Shelly. “And they were his world… We want to keep him alive in our memories.”

 

[dotr]

Magbanua lawyer asks 1st DCA to force Wendi Adelson deposition
Jeff Burlew Published 4:36 p.m. ET May 29, 2019

Kristen Kawass, an attorney for Kathering Magbanua, appears Wednesday, May 29, 2019 at the First District Court of Appeal in Tallahassee. (Photo: Jeff Burlew/Tallahassee Democrat)

"A defense lawyer for one of three people charged in the killing of Dan Markel argued Wednesday that the slain Florida State University law professor’s ex-wife, Wendi Adelson, should be required to appear for deposition before the trial"
*******
“The problem we’re having right now is we have absolutely no idea what she’s going to say (at trial),” Kawass said during the Wednesday proceeding. “Based on the state’s theory of prosecution, we can only imagine that she would have evidence or would have testimony that she would give in the deposition that would at least cause the defense to go down different avenues of investigation or at least properly prepare for her cross-examination at a minimum.”
*******
"Pate suggested Adelson’s testimony at trial would relate to events leading up to Markel’s killing.
“The purpose of calling her is to establish the divorce proceedings, the custody proceedings that provide the motivation for the murders,” Pate said. “I don’t think the state has any information directly tying her to the petitioner other than they know each other through ... the brother.”

 

[BSBC]

Here's the video of today's appellate hearing:

Before the hearing, I thought WA had the better of the argument about whether she should have to sit for a deposition. After all, what's the point of making her show up at some law office and say "I decline to answer pursuant to my Fifth Amendment rights" a few hundred times? However, the panel seemed more skeptical of that argument than I expected. I won't guess how they will rule.

BTW, when KM's attorney says, "The problem we’re having right now is we have absolutely no idea what she’s going to say (at trial),” that's the situation that defense attorneys face in most states other than Florida, which don't typically allow depositions in criminal cases.

 

[dotr]

May 29, 2019
Updated: 1 hour ago
Court moves to set time limits for jury selection in Markel murder trial

"TALLAHASSEE, Fla. — The court has moved to set time limits to question jurors during jury selection in the Dan Markel murder trial.

The court will give an hour and 45 minutes per panel however, both parties will have a chance to comment on the proposed time limits."

 

[smr]

Hoping this great big convoluted mess will be cleaned up and the Markels get to spend time with their grandchildren very soon. rbbm.
‘Over My Dead Body’ podcast: Slain Florida law professor’s father, sister say they ‘pray and hope’ for justice
March 7 2019
“I would say that we have faith in the justice system,” said Shelly. “There’s a trial upcoming and we pray and hope every day that the justice system will do its work, the investigators will have done their work and will do their work so that the case will get resolved and all those that have perpetrated the crimes will be brought to justice… We hope [the case] will be resolved the right way with the justice system working its course.”

Markel and Shelly said they do hope “Over My Dead Body” will keep Dan’s memory alive, but also raise awareness in their love and willingness to be reunited with his children.

(The Markel Family)

“We desperately want to see the children,” said Markel. “We desperately want to have contact with them. We want them to know that there is a Markel family that they are a part of… They had a father who loved them dearly, tremendously…. Even as a law professor, he made a special effort every day to spend lots of time with them. I don’t know what they remember. I don’t know what they will remember. We just hope and pray there is another way of communicating with them.”

“We want them to know of his amazing legacy,” added Shelly. “And they were his world… We want to keep him alive in our memories.”

I really hope DM's parents can have access to his children. The saddest thing, aside from his death, is that his children have been kept from his parents indefinitely, possibly for the rest of their lives, and their memory of their father fainting, all of which were exactly why he was murdered. The people who masterminded the murder have won. They got what they wanted. So far.

 

[kooshx]

Here's the video of today's appellate hearing:

Before the hearing, I thought WA had the better of the argument about whether she should have to sit for a deposition. After all, what's the point of making her show up at some law office and say "I decline to answer pursuant to my Fifth Amendment rights" a few hundred times? However, the panel seemed more skeptical of that argument than I expected. I won't guess how they will rule.

BTW, when KM's attorney says, "The problem we’re having right now is we have absolutely no idea what she’s going to say (at trial),” that's the situation that defense attorneys face in most states other than Florida, which don't typically allow depositions in criminal cases.

Thanks for posting this. It's interesting that the state was very clear they were not offering contractual immunity to WA. In fact, I think at one point one of the judges asked if WA could still be prosecuted apart from her testimony in this trial and the state said she could.

The state AG attorney didn't seem very well prepared; you couldn't win a moot court competition with that presentation. It seems like they don't really care about the ruling except to the extent that the deposition could further delay the trial.

It looks like the state just wants to use WA to establish the circumstances surrounding the divorce, but do they really need her testimony for that? Also, if the theory is that the defendants killed Markel as a result of the contentious divorce won't her testimony necessarily point the finger back at the Adelsons?

 

[kooshx]

The people who masterminded the murder have won. They got what they wanted. So far.

In the short term, maybe. At the same time the masterminds can't have a lot personal peace. Even if their consciences aren't tormented by what they've done, they have to know they're one piece of evidence away (and/or KM/SG caving and confessing) from being arrested and possibly spending the rest of their lives behind bars.

Plus, Dan's kids are going eventually growing up and investigate why Uncle Charlie went from periodontics to producing license plates for the state of Florida. I suspect when they learn the truth, they'll want to change their names back to Markel and have nothing to do with Adelson side of the family regardless of who ends up incarcerated.

 

[BSBC]

The Court of Appeal ruled 2-1 against KM. Unless KM successfully appeals to the FL Supreme Court, WA will not be forced to sit for a pre-trial deposition.
https://edca.1dca.org/DCADocs/2019/1875/191875_1279_05312019_04002232_i.pdf

"Although Magbanua persuasively argues that the protective order preventing any pretrial questioning of Adelson significantly impairs her ability to prepare a defense, any material injury to Magbanua may be corrected on direct appeal.2 See Callins v. State, 747 So. 2d 453, 453 (Fla. 4th DCA 1999) (observing that a defendant always has a right of appeal from a conviction in which he or she can attack any interlocutory order). Because we lack jurisdiction, the petition for writ of certiorari is DISMISSED."

 

[Razz]

The Court of Appeal ruled 2-1 against KM. Unless KM successfully appeals to the FL Supreme Court, WA will not be forced to sit for a pre-trial deposition.
https://edca.1dca.org/DCADocs/2019/1875/191875_1279_05312019_04002232_i.pdf

"Although Magbanua persuasively argues that the protective order preventing any pretrial questioning of Adelson significantly impairs her ability to prepare a defense, any material injury to Magbanua may be corrected on direct appeal.2 See Callins v. State, 747 So. 2d 453, 453 (Fla. 4th DCA 1999) (observing that a defendant always has a right of appeal from a conviction in which he or she can attack any interlocutory order). Because we lack jurisdiction, the petition for writ of certiorari is DISMISSED."

How can the trial begin w/out this question answered? If KM does appeal to Fl's supreme court, we'll have to wait until they"ve reviewed it? How long can that potentially take?

 

[clearskies1]

How can the trial begin w/out this question answered? If KM does appeal to Fl's supreme court, we'll have to wait until they"ve reviewed it? How long can that potentially take?

I think the question has been answered -- the appeals court is not granting the writ of certiori KM filed to overturn the trial court's discovery ruling. KM can now only raise the issue on a direct appeal (not a writ of cert) after the trial is over. If her direct appeal is granted (showing significant harm from inability to depose WA) then a new (second) trial will be ordered.

 

[BSBC]

I think the question has been answered -- the appeals court is not granting the writ of certiori KM filed to overturn the trial court's discovery ruling. KM can now only raise the issue on a direct appeal (not a writ of cert) after the trial is over. If her direct appeal is granted (showing significant harm from inability to depose WA) then a new (second) trial will be ordered.

It doesn't seem to me that KM has a particularly compelling argument that her inability to depose WA would render her trial fundamentally unfair, for at least a couple reasons. First, the prosecution, which plans to call WA to testify at trial, will be in the same position as the defense; neither will know exactly what WA will say until she takes the stand. Both sides have the videotape of WA's questioning by cops the day of DM's murder, but my understanding is that she hasn't cooperated with either the prosecution or the KM/SG defense since then. So it's not as if the prosecution will have some unfair advantage over KM's defense just because KM can't depose WA.

Second, depositions in criminal cases are just not the norm in the US. In most other states, criminal defense attorneys (and prosecutors) routinely question witnesses at trial without having deposed or informally interviewed them, and that's perfectly constitutional. While FL does provide for depositions in criminal cases, it just doesn't strike me as fundamentally unfair for a defendant not to be able to depose all witnesses before trial -- especially when, as here, the prosecution didn't have the ability to question a witness either.

This will be a fascinating trial -- just so much uncertainty over what KM's and SG's defenses will be, and what witnesses, including WA, will say.

 

[kooshx]

The Court of Appeal ruled 2-1 against KM. Unless KM successfully appeals to the FL Supreme Court, WA will not be forced to sit for a pre-trial deposition.
https://edca.1dca.org/DCADocs/2019/1875/191875_1279_05312019_04002232_i.pdf

"Although Magbanua persuasively argues that the protective order preventing any pretrial questioning of Adelson significantly impairs her ability to prepare a defense, any material injury to Magbanua may be corrected on direct appeal.2 See Callins v. State, 747 So. 2d 453, 453 (Fla. 4th DCA 1999) (observing that a defendant always has a right of appeal from a conviction in which he or she can attack any interlocutory order). Because we lack jurisdiction, the petition for writ of certiorari is DISMISSED."

Thanks for posting the decision. Here's an article on it: Appeals court rules against woman charged in Dan Markel murder

There's an interesting comment from the state attorney:

During the DCA proceeding, Trisha Meggs Pate, a bureau chief for the Attorney General’s Office, said Adelson is expected to testify about divorce and custody proceedings that led up to the murder. Campbell said it would be inappropriate for him to comment on what her testimony may be before the trial.

“However, we do not expect her to confess on the stand,” he said. (RBBM)

Maybe that's just a sarcastic quip, but it seems like a strange thing to say about a state witness whose divorce LE suspects was the catalyst for this tragic chain of events.

 

[dotr]

June 3 2019
TaxProf Blog: Divided Appeals Court Affirms Ruling That Wendi Adelson Need Not Give Defense Deposition In Dan Markel Murder Trial
"Judge Lori Rowe wrote the majority opinion, which was issued Friday, and Judge Scott Makar wrote a concurring opinion. “Although Magbanua persuasively argues that the protective order preventing any pretrial questioning of Adelson significantly impairs her ability to prepare a defense, any material injury to Magbanua may be corrected on direct appeal,” Rowe wrote. ...

Magbanua’s lawyers served Adelson a subpoena in April, but Hankinson granted a protective order at the request of Adelson’s lawyers."

"Judge Susan Kelsey dissented, writing that the protective order should be quashed because it departed from the essential requirements of law and caused Magbanua irreparable harm. “The law clearly requires that the Fifth Amendment privilege be asserted as to specific questions, rather than being asserted as a blanket refusal to testify as was the case here,” she wrote."

 

[dixiegirl1035]

Thanks to all the posts explaining that Florida is unique in letting the defense depose the prosecution witnesses. I had thought all along that that was the norm!