GUILTY FL - Dan Markel, 41, FSU Law Professor, Tallahassee, 18 July 2014 *arrests* #11

[Dorothy Jane]

"Says his plan was to hit the highway at the time of murder. He would have driven near the crime and driving a similar 4 door light colored sedan. He says he's aware Wendi Adelson implicated him and provided an alibi. It's because he decided to leave the previous evening instead...

July 4, 2014-- he says at a coffee shop, Wendi cancelled a trip to meet his parents in California July 11-17. Concerned she wouldn't get back in time to pick up the kids on the 18th. She said she didn't want to risk a flight delay because she (emphasis on) had to pick up the kids..

He said she was a nervous wreck and having stomach problems later. They had a big fight June 28th, they had an argument. He said it felt like she was stringing him along."

First time poster but long-time follower: I think it's been mentioned before but it looks like WA put some time/effort to setup LaCasse as the jealous boyfriend who would do ANYTHING to try to win WA back including deciding on his own to murder her ex to gain favor. David Lat thinks WA didn't know beforehand of the murder but I think LaCasse's testimony goes a long way to refuting that.

I had this same thought. His testimony was really devastating.

 

[Gypsy Road]

Did anyone else notice that Wendi wore the exact same outfit she wore during the first trial? It’s irrelevant I guess, but interesting. I wonder if that was on purpose?

 

[Kath1963]

Did anyone else notice that Wendi wore the exact same outfit she wore during the first trial? It’s irrelevant I guess, but interesting. I wonder if that was on purpose?

I noticed that. She must have a reason -- what could it be? I know it confused me when I looked for her testimony on Youtube just now.

 

[TTF14]

I watched a chunk today while at work on my phone. Well, I listened basically as I worked. I thought the cross examination of Rivera was very much like being run over by a truck. By that I mean, DeCoste was just piling up assumptions and Rivera, who does not seem like the sharpest pencil in the box, just kept saying yes sir, yes sir over and over and then he would suddenly realize what he was saying yes sir to and come awake and say ... no, I told the truth and Katie was the middleman. I see what DeCoste is trying to do. But I do think that Rivera basically coming to every so often refutes the effort of the defense to make Rivera some mastermind who sought to bring down Katie and Garcia because they got caught.

Now, I do know this case pretty well. But I tried to put myself in the position of not knowing, and I think I would have realized Rivera was being railroaded up there by DeCoste and I also would have had a hard time keeping up with DeCoste if I had been on that jury.

The ex-boyfriend of Wendy was very illuminating. I think he harmed the defense. And I do not think the defense trying to imply he would be the defendant if he had not left on his trip the night before worked at all.

I keep hoping this will come out like so many circumstantial cases ... guilty because it is basically the only thing that could make sense.

I also don't see why the defense saying CA organized it will keep CA out of jail.

I think that the way DeCoste asks questions (more as statements...."You'd agree with me that you disagree.....") is very confusing to someone like Rivera. It's his way, so I don't think he's doing it just to get "wrong" answers out of Rivera, but he should be more clear cut in the way he asks questions.....and just ask the question instead of constantly saying "You'd agree with me."

On another note, I hope Georgia Cappleman finds case law tonight that supports conspiracy continuing until the payment is made (and doesn't stop at the murder) so they can introduce the evidence they want to (something about what someone heard being said on the "other end" of the phone/hearsay). Sounds really important.

 

[Costcoluvr]

"Says his plan was to hit the highway at the time of murder. He would have driven near the crime and driving a similar 4 door light colored sedan. He says he's aware Wendi Adelson implicated him and provided an alibi. It's because he decided to leave the previous evening instead...

July 4, 2014-- he says at a coffee shop, Wendi cancelled a trip to meet his parents in California July 11-17. Concerned she wouldn't get back in time to pick up the kids on the 18th. She said she didn't want to risk a flight delay because she (emphasis on) had to pick up the kids..

He said she was a nervous wreck and having stomach problems later. They had a big fight June 28th, they had an argument. He said it felt like she was stringing him along."

First time poster but long-time follower: I think it's been mentioned before but it looks like WA put some time/effort to setup LaCasse as the jealous boyfriend who would do ANYTHING to try to win WA back including deciding on his own to murder her ex to gain favor. David Lat thinks WA didn't know beforehand of the murder but I think LaCasse's testimony goes a long way to refuting that.

David Lat said he didn’t think Wendi was involved in Danny’s murder before the MOUNTAIN of evidence that suggests otherwise was revealed. I am sure he’s changed his view.

 

[Dorothy Jane]

I think that the way DeCoste asks questions (more as statements...."You'd agree with me that you disagree.....") is very confusing to someone like Rivera. It's his way, so I don't think he's doing it just to get "wrong" answers out of Rivera, but he should be more clear cut in the way he asks questions.....and just ask the question instead of constantly saying "You'd agree with me."

On another note, I hope Georgia Cappleman finds case law tonight that supports conspiracy continuing until the payment is made (and doesn't stop at the murder) so they can introduce the evidence they want to (something about what someone heard being said on the "other end" of the phone/hearsay). Sounds really important.

Oh yes! I am hoping for that as well. It seems insane that the conspiracy ends at the murder. I would think it would not end until they are paid. I also think this judge is really good. He isn't going to put up with nonsense.

 

[vislaw]

… It seems insane that the conspiracy ends at the murder. I would think it would not end until they are paid. I also think this judge is really good. He isn't going to put up with nonsense.

I can buy the conspiracy ending with the murder but I cannot believe conversations by the conspirators after the murder cannot be used as ratification of the conspiracy. I believe Ms. Cappleman will show up with some law that establishes admissibility.

 

[jbc]

I'm not a lawyer, but suppose the conspirators worked together after the murder to hide themselves from law enforcement, or otherwise to stop from being implicated. Wouldn't that be part of the "conspiracy?"
A tutorial by the smart lawyers here would be welcome... thanks!

 

[clearskies1]

I noticed that. She must have a reason -- what could it be? I know it confused me when I looked for her testimony on Youtube just now.

Don't know the motivation but it makes it harder to compare/distinguish her testimony on the two different days when she is wearing the same thing. It looks like one day of testimony. JMO.

 

[KidonGadol]

I can buy the conspiracy ending with the murder but I cannot believe conversations by the conspirators after the murder cannot be used as ratification of the conspiracy. I believe Ms. Cappleman will show up with some law that establishes admissibility.

A slightly different tack -If you pay off someone after the crime for committing it then that sounds like solicitation. The issue is proving that KM knew what was wrapped in the plastic bags and what it was payment for. During opening , Sarah D indicated that prosecution would prove that KM picked up the money from CJA for the drop with Rivera. That's the way I read it. I don't know what's different this time around.

 

[Snoop Sister]

Did anyone else notice that Wendi wore the exact same outfit she wore during the first trial? It’s irrelevant I guess, but interesting. I wonder if that was on purpose?

Yes I did and went back to look at first trial videos to make sure. The exact same outfit…I thought that was weird.
I think it was on purpose but not sure of relevance or reasoning behind Wendi doing so.
jmo

 

[Blue Shakehead]

Wow, that was an explosive day of testimony and a terrible day for Wendi Adelson and the three people left (Charlie, Harvey, Donna) who believe she has a soul. DeCoste's cross examination of Wendi was brutal and efficient and when followed by Lecasse's testimony, the scene was set appropriately to show the world just how much of a Disney villain she is.

I agree with other posters here that DeCoste's cross of Rivera was not as effective. He used the same aggressive tactics on Rivera that he used to eviscerate Wendi but they did not quite connect in the same way because:

1) Wendy is playing the victim*; does not express an ounce of shame (moral or otherwise),and even seems to want praise for not immediately lawyering up an hour after the murder of the father of her children, AND
2) Before tearing into Wendi, DeCoste set the stage that Wendi is very intelligent and a highly educated lawyer. She''s nobody's fool, so all of her evasive answers look completely untrustworthy and hostile.

Rivera is a completely different witness. Despite being a violent gang leader, he has fully acknowledged his guilt in the crime and somehow comes across as more sympathetic than any of the other principals in this case of college-educated, white collar rich people with no criminal histories. For instance, Rivera didn't want to kill Dan Markel when his kids were around -- which seems to be from personal conviction and not an instruction from the Adelson's who hired him.

It is clear that DeCoste will be able to trip up Rivera quite a bit on some of the minor details, given the passage of time and Rivera's limited literacy and aptitude. This is obviously why the Defense wanted the trial delayed for years. But on the major points Rivera stood his ground - he kept referring to Katie as the mastermind and pointed to her involvement from start to finish. DeCoste has also gotta be careful trying to impeach Rivera's credibility on the "sweetheart deal" he struck and how federal prison is somehow like a 5 star hotel. The defense implication that Rivera is lying to get a better deal will likely end up biting them because on re-direct the State will be able to point out that his deal would be void if he is found to be lying. So that makes his testimony more credible, not less.

Of course, my observations are also incredibly biased and so its possible that the jury will have a completely different point of view.

*favorite Wendi moment was when DeCoste asked her if she could name anyone in the world outside of her family that would want Dan Markel killed. Second favorite was when DeCoste asked what kind of mother would cut off grandparent visitation from the murder victim's parents while also letting the kids hang out with their murdering uncle Charlie.

 

[vislaw]

I'm not a lawyer, but suppose the conspirators worked together after the murder to hide themselves from law enforcement, or otherwise to stop from being implicated. Wouldn't that be part of the "conspiracy?"
A tutorial by the smart lawyers here would be welcome... thanks!

My understanding is that the whole issue here is whether or not the phone call Rivera overheard between Magbanua and Garcia may be admitted into evidence. Defense counsel raised the objection that the call is hearsay (an out of court statement admitted for the truth of the statement). The call would obviously qualify as hearsay, so the only way it can come into evidence is either: 1) the call is not being introduced to prove the truth of the statement; or, 2) the call falls under an exception to the hearsay rule.

One of the exceptions to the rule is statements made by co-conspirators in the furtherance of the conspiracy. This is the exception that defense counsel Kawass refers to and claims does not apply here. According to Kawass, the law requires that the statement be made during the conspiracy and that the conspiracy ended at the time of the murder (because the murder was the objective of the conspiracy).

I do know that the "conspiracy exception" to hearsay requires independent proof of the conspiracy. And apparently Kawass is saying the state does not have such independent proof of the conspiracy. Therefore, she argues, the phone call cannot come into evidence. This is very good lawyering on her part, and I've noticed that Kawass is generally the most well-armed attorney in this courtroom when it comes to legal arguments.

I haven't attempted any legal research on this point and am relying on memories from my old law school evidence class, so I am no expert. However, my guess is the prosecution will attempt to counter Kawass by the following arguments:

1) They may argue that they are NOT trying to admit the call to prove the truth of what is being said by Garcia and Magbanua. Under this argument, the conversation is relevant to prove there was a conspiracy and, as such, is not being used to prove the truth of what was being said in the call itself. (Kawass is claiming you can't make this argument without independent proof of the conspiracy outside of the call itself. She may be right on this point, but my gut tells me it may not work here where the call is such powerful evidence that there was a conspiracy.)

2) If I were the prosecutor, I'd try to argue the payment for the hit is an inseparable part of the conspiracy objective. There wouldn't have been a murder without the payment, and it obviously was an integral part of the crime. Magbanua claims it is cut and dried that the conspiracy ends when the murder occurred (the state is, after all, charging conspiracy to commit murder). As I said, I haven't researched the law, but I find it hard to believe that payment to the hitmen is not considered part of the crime of murder when it involves murder for hire. We'll have to see if Ms. Cappleman comes up with some law that supports my gut intuition.

3) I would also make the argument that there IS evidence of a conspiracy independent of the conversation and, thus, the conversation fits the exception to the hearsay rule. You can tell from the way Kawasa argues that she knows she has to close this door to have any hope of winning the argument. She practically shouts, "Your honor, there is 100% no other evidence of this conspiracy on behalf of the defendant before the murder." I would take the position that there IS evidence of Katie's involvement in the conspiracy independently through what Garcia told Rivera and that Rivera understood clearly and unequivocally that Katie was (as he described her) the "mastermind" before the murder occurred.

*** Sorry for the lengthy discussion and I've probably bored you all to tears. Let's see what Georgia comes up with in the morning.

 

[Marysmith]

Are both of Dan’s parents present? I know his father is but I was wondering about his mother.

 

[clearskies1]

I thought Kawass was arguing that Rivera should not be able to testify about what Garcia (allegedly) told him about Katie because there was no independent proof (aside from Garcia's hearsay statements) of Katie's involvement in the conspiracy. But the prosecutor said that there will be separate evidence of Katie's involvement in the conspiracy -- that separate evidence being that Rivera directly heard Katie talk about the murder when Garcia and Katie spoke on the phone. So it's not just Garcia telling Rivera what Katie said, it's also Rivera directly hearing Katie talk about the murder. With the understanding that there would be such evidence (of Rivera hearing Katie discuss the murder), the judge allowed the "hearsay" statements of Garcia to come in. That's what I thought happened on that issue. JMO.

 

[Marysmith]

"Says his plan was to hit the highway at the time of murder. He would have driven near the crime and driving a similar 4 door light colored sedan. He says he's aware Wendi Adelson implicated him and provided an alibi. It's because he decided to leave the previous evening instead...

July 4, 2014-- he says at a coffee shop, Wendi cancelled a trip to meet his parents in California July 11-17. Concerned she wouldn't get back in time to pick up the kids on the 18th. She said she didn't want to risk a flight delay because she (emphasis on) had to pick up the kids..

He said she was a nervous wreck and having stomach problems later. They had a big fight June 28th, they had an argument. He said it felt like she was stringing him along."

First time poster but long-time follower: I think it's been mentioned before but it looks like WA put some time/effort to setup LaCasse as the jealous boyfriend who would do ANYTHING to try to win WA back including deciding on his own to murder her ex to gain favor. David Lat thinks WA didn't know beforehand of the murder but I think LaCasse's testimony goes a long way to refuting that.

Yes, I agree! He was a great witness.

 

[Blue Shakehead]

My understanding is that the whole issue here is whether or not the phone call Rivera overheard between Magbanua and Garcia may be admitted into evidence. Defense counsel raised the objection that the call is hearsay (an out of court statement admitted for the truth of the statement). The call would obviously qualify as hearsay, so the only way it can come into evidence is either: 1) the call is not being introduced to prove the truth of the statement; or, 2) the call falls under an exception to the hearsay rule.

One of the exceptions to the rule is statements made by co-conspirators in the furtherance of the conspiracy. This is the exception that defense counsel Kawass refers to and claims does not apply here. According to Kawass, the law requires that the statement be made during the conspiracy and that the conspiracy ended at the time of the murder (because the murder was the objective of the conspiracy).

I do know that the "conspiracy exception" to hearsay requires independent proof of the conspiracy. And apparently Kawass is saying the state does not have such independent proof of the conspiracy. Therefore, she argues, the phone call cannot come into evidence. This is very good lawyering on her part, and I've noticed that Kawass is generally the most well-armed attorney in this courtroom when it comes to legal arguments.

I haven't attempted any legal research on this point and am relying on memories from my old law school evidence class, so I am no expert. However, my guess is the prosecution will attempt to counter Kawass by the following arguments:

1) They may argue that they are NOT trying to admit the call to prove the truth of what is being said by Garcia and Magbanua. Under this argument, the conversation is relevant to prove there was a conspiracy and, as such, is not being used to prove the truth of what was being said in the call itself. (Kawass is claiming you can't make this argument without independent proof of the conspiracy outside of the call itself. She may be right on this point, but my gut tells me it may not work here where the call is such powerful evidence that there was a conspiracy.)

2) If I were the prosecutor, I'd try to argue the payment for the hit is an inseparable part of the conspiracy objective. There wouldn't have been a murder without the payment, and it obviously was an integral part of the crime. Magbanua claims it is cut and dried that the conspiracy ends when the murder occurred (the state is, after all, charging conspiracy to commit murder). As I said, I haven't researched the law, but I find it hard to believe that payment to the hitmen is not considered part of the crime of murder when it involves murder for hire. We'll have to see if Ms. Cappleman comes up with some law that supports my gut intuition.

3) I would also make the argument that there IS evidence of a conspiracy independent of the conversation and, thus, the conversation fits the exception to the hearsay rule. You can tell from the way Kawasa argues that she knows she has to close this door to have any hope of winning the argument. She practically shouts, "Your honor, there is 100% no other evidence of this conspiracy on behalf of the defendant before the murder." I would take the position that there IS evidence of Katie's involvement in the conspiracy independently through what Garcia told Rivera and that Rivera understood clearly and unequivocally that Katie was (as he described her) the "mastermind" before the murder occurred.

*** Sorry for the lengthy discussion and I've probably bored you all to tears. Let's see what Georgia comes up with in the morning.

Not boring at all, this is excellent analysis. Thanks vislaw. I'm a bit worried about this as the judge seems to be leaning towards Kawass' argument - where the conspiracy ends after the murder occurs. So if criminal conspiracies are by definition - an agreement to commit a crime in the future - Rivera overhearing Katie and Garcia's call acknowledging that the crime already occurred would not eligible for a hearsay exception. However, the conspiracy is quite obviously murder for money and so it would be quite shocking if courts limited the scope to only one part of that transaction.

I agree with you that there is other evidence that supports that Katie was involved in the planning prior to the murder. There are cell phone records, her instructions to Garcia to remove the picture from instagram. But thats not direct evidence as it went through Garcia to Rivera.

I am hoping Cappleman can come with the case law goods tomorrow. I am also worried about the fallout if the Judge rules against this. He would likely instruct the jury to completely disregard Rivera's statement on Katie's phone call confirming the murder but the damage is already done because the jury has already heard it. But instructions from the judge could be just the tip of the iceberg here.

 

[Cutie]

Did anyone else notice that Wendi wore the exact same outfit she wore during the first trial? It’s irrelevant I guess, but interesting. I wonder if that was on purpose?

Every female litigator I know noticed this, and most think that she has a jury/image consultant and this must have tested well.

Anyone else getting major Elizabeth Holmes/Theranos vibes from Wendi as she does her "innocent victim" act on the stand? I'm blown away by her flat out lies, and confused by the breadth of immunity. Can she just lie about everything?

 

[jbc]

If I understand this correctly, when Wendi pulled onto Trescott the morning of the murder, she got as far as actually being able to see the house. Unlike other motorists, she didn’t pause or chit chat with the officers to find out what was happening, but instead turned around quickly and got out of dodge. Anybody with small kids living at their exes house, seeing a police scene like that, would inquire or call the ex to be sure the kids were ok. Perhaps it went down before DM had the chance to get the kids to daycare. Absence of any info at such a scene would drive a caring parent into obsessive paranoia until the kids are found safe. She must have called the daycare to learn that DM deposited them safely at the scheduled time before viewing the police scene.

 

[clearskies1]

If I understand this correctly, when Wendi pulled onto Trescott the morning of the murder, she got as far as actually being able to see the house. Unlike other motorists, she didn’t pause or chit chat with the officers to find out what was happening, but instead turned around quickly and got out of dodge. Anybody with small kids living at their exes house, seeing a police scene like that, would inquire or call the ex to be sure the kids were ok. Perhaps it went down before DM had the chance to get the kids to daycare. Absence of any info at such a scene would drive a caring parent into obsessive paranoia until the kids are found safe. She must have called the daycare to learn that DM deposited them safely at the scheduled time before viewing the police scene.

My understanding is that the police tape was up at the intersection of Centerville Rd and Trescott and Dan's house was quite a distance down Trescott from Centerville and around a curve. So the house would not be visible from where the crime tape was.