FL - FSU Law Professor Dan Markel Murdered by Hitmen #13 *1 guilty*

[BSBC]

In a criminal case, there is NO state (or federal) statute that overrides the Fifth Amendment of the US Constitution that protects people from being compelled to give testimony.

Immunity statutes like Florida's Sec. 914.04 don't "override" the Fifth Amendment; they are consistent with it. The Florida courts have held that a witness can be compelled to testify under Sec. 914.04, notwithstanding the Fifth Amendment right against self-incrimination, because that testimony cannot be used against the witness. See, e.g., State v. Mitrani, 19 So. 3d 1065 (5th Dist. Ct. of App. 2009). Likewise, the US Supreme Court has repeatedly stated that immunity statutes may, consistent with the Fifth Amendment, compel witnesses to testify, provided that testimony is not used against them. See, e.g., United States v. Apfelbaum, 445 US 115, 125 (1980):

And this Court has repeatedly recognized the validity of immunity statutes. Kastigar v. United States, 406 U. S., at 449, acknowledged that Congress included immunity statutes in many of the regulatory measures adopted in the first half of this century, and that at the time of the enactment of 18 U. S. C. § 6002, the statute under which this prosecution was brought, there were in force over 50 federal immunity statutes as well as similar laws in every State of the Union. 406 U. S., at 447. This Court in Ullmann v. United States, supra, stated that such statutes have "become part of our constitutional fabric." 350 U. S., at 438. And the validity of such statutes may be traced in our decisions at least as far back as Brown v. Walker, supra.

As the Apfelbaum opinion notes, the Supreme Court upheld such a statute in 1896 in Brown v. Walker.

The bottom line is that if the state believes it will help its case, it may subpoena DA, WA, or HA to testify in CA's trial pursuant to Sec. 914.04, and if they refuse, they will be jailed for contempt. Whether that would be a wise strategy is a different question.

 

[vislaw]

Immunity statutes like Florida's Sec. 914.04 don't "override" the Fifth Amendment; they are consistent with it. The Florida courts have held that a witness can be compelled to testify under Sec. 914.04, notwithstanding the Fifth Amendment right against self-incrimination, because that testimony cannot be used against the witness. See, e.g., State v. Mitrani, 19 So. 3d 1065 (5th Dist. Ct. of App. 2009). Likewise, the US Supreme Court has repeatedly stated that immunity statutes may, consistent with the Fifth Amendment, compel witnesses to testify, provided that testimony is not used against them. See, e.g., United States v. Apfelbaum, 445 US 115, 125 (1980): ... ...

I agree with you and appreciate your analysis. However, I believe the remaining Adelsons are in a much different position than Wendi with regard to the potential for being called as a witness in Charlie's case. Wendi's counsel negotiated the immunity agreement she testified under whereby she would not take the Fifth and the State would not be able to use her testimony against her. Given the limited scope of the questions the prosecution proposed to ask her, she and her attorneys agreed she would testify under "derivative use" immunity. The arrangement suited both sides. The State was able to present Wendi's basic information and she was able to present herself as being innocent and cooperative for purposes of public relations.

The information Wendi was asked about was non-controversial stuff that helped establish the background for the jury without risking jeopardizing any later charges that might be brought against her. If the prosecution would call Donna or Harvey in Charlie's case now you can be 100% sure their counsel would take the position that the state must give them "transactional" immunity for them to not take the Fifth. Given that they are clearly major targets for prosecution and Florida law requires interpreting immunity in favor of the rights of defendants, the State is simply not going to go down that road or take ANY risks of diluting the case against the two of them. In theory, the State could subpoena them, but the prosecutors I know say there's no chance it would occur under these facts.

Of course, the State may again require Wendi to give the same tepid testimony we've seen twice now, but I'm confident they won't be seeking any testimony outside of the previously negotiated agreement. I also believe that if they had a time machine and could go back, Wendi's counsel would be much more aggressive seeking a grant of "transactional" immunity for her testimony.

 

[BSBC]

@vislaw: I am genuinely curious as to the basis of your statement that "Wendi's counsel negotiated the immunity agreement she testified under whereby she would not take the Fifth and the State would not be able to use her testimony against her." I have seen references in this forum to such an "immunity agreement," but I have never seen this purported agreement, nor any mention of it in legitimate news reporting. Have you?

I could be proven wrong, but I'm skeptical that there was any "immunity agreement" between the state and WA, because Sec. 914.04 obviates the need for any such agreement. Under that statute, when a witness is subpoenaed pursuant to it, the "use immunity" he or she is granted is automatic; it's granted by the statute, not by an "agreement" between the witness and the state. As the Florida Supreme Court held in Jenny v. State, 447 So. 2d 1351 (Fla. 1984), "By its very plain meaning, the statute [Sec. 914.04] is self-executing. The statute automatically grants use and transactional immunity to one who testifies under the circumstances it delineates.[*] There is no requirement that a person must invoke the privilege against self-incrimination in order to be granted immunity." (The court in Jenny was referring to a previous version of Sec. 914.04 that conferred transactional as well as use immunity. The statute was amended in 1982 to delete the transactional immunity. See DeBock v. State, 512 So. 2d 164 (Fla. 1987) ("the 1982 amendment narrowed the scope of the grant and the statute now provides for only use and derivative use immunity").)

 

[Seattle1]

Immunity statutes like Florida's Sec. 914.04 don't "override" the Fifth Amendment; they are consistent with it. The Florida courts have held that a witness can be compelled to testify under Sec. 914.04, notwithstanding the Fifth Amendment right against self-incrimination, because that testimony cannot be used against the witness. See, e.g., State v. Mitrani, 19 So. 3d 1065 (5th Dist. Ct. of App. 2009). Likewise, the US Supreme Court has repeatedly stated that immunity statutes may, consistent with the Fifth Amendment, compel witnesses to testify, provided that testimony is not used against them. See, e.g., United States v. Apfelbaum, 445 US 115, 125 (1980):



As the Apfelbaum opinion notes, the Supreme Court upheld such a statute in 1896 in Brown v. Walker.

The bottom line is that if the state believes it will help its case, it may subpoena DA, WA, or HA to testify in CA's trial pursuant to Sec. 914.04, and if they refuse, they will be jailed for contempt. Whether that would be a wise strategy is a different question.

IMO, one has to be careful to not ignore what Florida's Sec. 914.04 doesn't provide-- lending to a misleading interpretation for the purpose of discussion here.

More specifically, Sec. 914.04, as amended, is not intended for ALL criminal prosecutions but certain prosecutions.

The statute only provides for use immunity and derivative use immunity. By excluding transactional immunity, a witness would need other remedies for protection. A witness may assert Fifth Amendment privilege if they have reasonable grounds to fear further state prosecution.

The statute does not eliminate the prosecutor's discretion in granting immunity and does not expressly prohibit the grant of immunity by agreement.

In other words, the application of the statute is really more complicated than compelling testimony. MOO

https://criminallawyerjacksonville.com/0914.04.html

 

[Seattle1]

Magbanua Trial Day 2: Wendi Adelson talks about relationship between brother Charlie and Dan Markel

Katherine Magbanua’s retrial resumed Thursday with testimony from Dan Markel’s ex-wife, Wendi Adelson. Magbanua is accused of being the go-between for the Adelson family and the hitmen who killed the FSU law professor.

news.wfsu.org

5/19/22

[..]

Adelson told state prosecutors she wants the people who killed Markel held accountable, even if they’re her own family. Adelson was granted immunity for her testimony as her family members have long been implicated in Markel's murder. The two were involved in a custody fight at the time of his death.

Prosecutor Georgia Cappleman questioned Adelson today about her brother's relationship with Katherine Magbanua. Charlie Adelson was arrested last month after prosecutors revealed a newly enhanced, six-year-old audio recording of him and Magbanua in a Miami restaurant. He and Magbanua briefly dated, and Magbanua's ex is Sigfredo Garcia, the convicted shooter.

“Were you aware of your brother ever having any communications with the scary ex-husband [Sigfredo Garcia]?" asked Assistant State Attorney Georgia Cappleman.

"No," responded Wendi Adelson, "only that my brother seemed a little scared of him. I don’t know if they talked or didn’t talk."

Cappleman followed up with, "So, it would be surprising to you to learn they have a relationship," to which Wendi responded,
"yes."

Magbanua’s defense attorneys argue Charlie went behind Magbanua’s back and hired Garcia to kill Markel without her knowledge.

[..]

“You understand that until you expose your brother, explain that he went behind everybody’s back and hired a hitman to murder your ex-husband, you’ll remain guilty in the eyes of the world," DeCoste said to Adelson.

"I can’t speak to the eyes of the World, I can only know I’ve done nothing wrong," she replied.

 

[Seattle1]

Ex-wife Wendi Adelson testifies under immunity in Dan Markel case

Adelson said she knew some of her family members were angry with Markel during their divorce, but was unaware of the state's theory about the murder.

www.tallahassee.com

10/1/2019

Testifying under an immunity deal Friday in the murder trial of Sigredo Garcia and Katherine Magbanua, Adelson said she knew some of her family members were angry with him during their divorce, but she said she was unaware of the state's theory about the murder.

“Do you know who killed Dan Markel?” Magbanua’s attorney Tara Kawass asked.

“No,” Adelson replied, shaking her head.

“Did your brother have anything to do with killing Dan Markel?”

“I don’t believe so,” she said.

Under questioning, Adelson briefly discussed her immunity, which prevents her testimony from being used against her but does not preclude the state from ever charging her. When asked about whether she may ever be arrested, Adelson broke into a smile.

“The state isn’t going to decide to arrest me,” Adelson said.

[..]

 

[Seattle1]

Could Dan Markel's ex-wife face charges later?

We're digging deeper into what if any legal issues Markel's ex-wife Wendi Adelson could face.

www.wtxl.com

10/1/2019

TALLAHASSEE, Fla. — We're digging deeper into what if any legal issues Markel's ex-wife Wendi Adelson could face.

Last week Wendi Adelson took the stand during this trial. She did so under immunity by the state attorney, meaning what she said could not be used against her.

We spoke with Don Pumphrey, a criminal defense attorney. He cleared some things up about Adelson's testimony.

He says that after this case is over, what Adelson said during her testimony can not be used against her if the state attorney decides to charge her at a later time.

However, if the state attorney can provide an independent legitimate source to provide evidence against her, then she could be charged.

"The testimony can't bite her, but the information that comes from an independent legitimate source, not derived from that testimony which she is immune from, could definitely have some teeth," said Pumphrey.

 

[vislaw]

@vislaw: I am genuinely curious as to the basis of your statement that "Wendi's counsel negotiated the immunity agreement she testified under whereby she would not take the Fifth and the State would not be able to use her testimony against her." I have seen references in this forum to such an "immunity agreement," but I have never seen this purported agreement, nor any mention of it in legitimate news reporting. Have you?

I could be proven wrong, but I'm skeptical that there was any "immunity agreement" between the state and WA, because Sec. 914.04 obviates the need for any such agreement. Under that statute, when a witness is subpoenaed pursuant to it, the "use immunity" he or she is granted is automatic; it's granted by the statute, not by an "agreement" between the witness and the state. As the Florida Supreme Court held in Jenny v. State, 447 So. 2d 1351 (Fla. 1984), "By its very plain meaning, the statute [Sec. 914.04] is self-executing. The statute automatically grants use and transactional immunity to one who testifies under the circumstances it delineates.[*] There is no requirement that a person must invoke the privilege against self-incrimination in order to be granted immunity." (The court in Jenny was referring to a previous version of Sec. 914.04 that conferred transactional as well as use immunity. The statute was amended in 1982 to delete the transactional immunity. See DeBock v. State, 512 So. 2d 164 (Fla. 1987) ("the 1982 amendment narrowed the scope of the grant and the statute now provides for only use and derivative use immunity").)

First of all, let me say how much I appreciate and enjoy discussing granular legal details like this with you. I've enjoyed your posts and am glad you are here raising these issues. I'm comfortable stating there was a negotiated agreement based on my own experience when I practiced and based upon my discussions with many prosecutors, public defenders, and private practicing defense counsel who I work with in my current career.

As a member of the tribe herself as an attorney, and being represented by the best counsel money can buy, I assure you there were intense negotiations when she testified. She was already a public figure in the case whose involvement was being speculated upon in the press and around the water cooler. As soon as the prosecution approached her counsel about testifying the issue of transactional vs derivative use immunity would have been on everyone's mind.

Here's a short passage from attorney Mark Eiglarsh's site in which he uses the subject to persuade criminals why they need to "lawyer up" and "bargain" if the State comes sniffing around their house with a subpoena:

Immunity agreements are contracts between government and witness. The witness gives information and testimony and the government promises not to prosecute. But it’s not that simple. These contracts typically take one of two forms, and although they offer some protection, neither really make the witness “immune” as the word is commonly understood. In a “use or derivative use immunity” arrangement, the government may not use the witness’ testimony, or evidence gained (“derived”) from it, against that witness. “Transactional immunity” is much stronger, preventing the government from prosecuting the witness for any crimes (“transactions”) related to the testimony. Norm hastily agreed to use and derivative use immunity and got into trouble because the feds did not “use” his statements against him. Because of the prior surveillance and the receipts, Norm was guilty based on legitimate evidence sources not related to his testimony. If he had lawyered-up and bargained for transactional immunity, Norm may have been protected.

So, am I privy to the "immunity agreement" negotiated between Wendi and the State of Florida? No. ... Am I willing to bet my prized Lady Justice Lego set that such an agreement exists? Yes.

It is important to recognize that this was not a "cooperation agreement" and was merely a contract agreed upon between the prosecution and Wendi that was sufficient to permit her to agree to testify without taking the Fifth. I'm assuming that Katie is spilling her beans under a cooperation agreement in which a negotiated plea reduction (or whatever they agreed to give her in return for cooperating) requires her to answer all questions and testify truthfully. As you observed, Wendi was testifying pursuant to the State's statutory power to compel her to do so. Her attorneys could have taken the matter to the judge if they were not happy with what the State was offering (and, indeed, they did make a stink about her taking the Fifth in response to the defense attempt to subpoena her in the second trial).

 

[BSBC]

First of all, let me say how much I appreciate and enjoy discussing granular legal details like this with you. I've enjoyed your posts and am glad you are here raising these issues. I'm comfortable stating there was a negotiated agreement based on my own experience when I practiced and based upon my discussions with many prosecutors, public defenders, and private practicing defense counsel who I work with in my current career.

As a member of the tribe herself as an attorney, and being represented by the best counsel money can buy, I assure you there were intense negotiations when she testified. She was already a public figure in the case whose involvement was being speculated upon in the press and around the water cooler. As soon as the prosecution approached her counsel about testifying the issue of transactional vs derivative use immunity would have been on everyone's mind.

Here's a short passage from attorney Mark Eiglarsh's site in which he uses the subject to persuade criminals why they need to "lawyer up" and "bargain" if the State comes sniffing around their house with a subpoena:

Immunity agreements are contracts between government and witness. The witness gives information and testimony and the government promises not to prosecute. But it’s not that simple. These contracts typically take one of two forms, and although they offer some protection, neither really make the witness “immune” as the word is commonly understood. In a “use or derivative use immunity” arrangement, the government may not use the witness’ testimony, or evidence gained (“derived”) from it, against that witness. “Transactional immunity” is much stronger, preventing the government from prosecuting the witness for any crimes (“transactions”) related to the testimony. Norm hastily agreed to use and derivative use immunity and got into trouble because the feds did not “use” his statements against him. Because of the prior surveillance and the receipts, Norm was guilty based on legitimate evidence sources not related to his testimony. If he had lawyered-up and bargained for transactional immunity, Norm may have been protected.

So, am I privy to the "immunity agreement" negotiated between Wendi and the State of Florida? No. ... Am I willing to bet my prized Lady Justice Lego set that such an agreement exists? Yes.

It is important to recognize that this was not a "cooperation agreement" and was merely a contract agreed upon between the prosecution and Wendi that was sufficient to permit her to agree to testify without taking the Fifth. I'm assuming that Katie is spilling her beans under a cooperation agreement in which a negotiated plea reduction (or whatever they agreed to give her in return for cooperating) requires her to answer all questions and testify truthfully. As you observed, Wendi was testifying pursuant to the State's statutory power to compel her to do so. Her attorneys could have taken the matter to the judge if they were not happy with what the State was offering (and, indeed, they did make a stink about her taking the Fifth in response to the defense attempt to subpoena her in the second trial).

Why would the state need to negotiate an agreement for WA's testimony when the statute gives them the ability to force her testimony with no deal whatsoever? If they rely on the statute, WA has to answer questions, and if she doesn't, she can be held in contempt and jailed until she does (but her testimony can't be used to prosecute her later, except for perjury). But if they negotiate a deal, presumably the state has to give something up, e.g., to limit their questioning in some way. And remember that the defense got to question WA (quite harshly, especially in the second trial), and they were certainly not part of any agreement.

Despite those rather vague references in the press to an "agreement," which never mention the terms, I will remain skeptical that one exists absent someone posting the agreement itself. As far as I can tell, it was never was posted on the docket (unlike, say, LR's agreement with the state, which I've attached). It's quite possible--indeed more than likely--that the (non-lawyer) reporters misunderstood the source of the immunity, i.e., whether it was a "deal" rather than the statute. And given FL's very strong sunshine laws, I'm virtually certain that one of the attorneys reporting on the case (e.g., Mentour Lawyer) would have requested and posted any such agreement.

 

[Deleted member 302228]

So, am I privy to the "immunity agreement" negotiated between Wendi and the State of Florida? No. ... Am I willing to bet my prized Lady Justice Lego set that such an agreement exists? Yes.

I agree with @BSBC, If there was any formal agreement it would be publicly disclosed.

 

[katiecoolady]

Fascinating legal discussions going on here. Doing my lay person best to digest it all--appreciate you all weighing in!

I have a curiosity. What would be the benefit/detriment to trying all of the Adelsons together if they end up getting charged? Or let's just start with Charlie and Donna.

 

[vislaw]

Why would the state need to negotiate an agreement for WA's testimony when the statute gives them the ability to force her testimony with no deal whatsoever? If they rely on the statute, WA has to answer questions, and if she doesn't, she can be held in contempt and jailed until she does (but her testimony can't be used to prosecute her later, except for perjury). But if they negotiate a deal, presumably the state has to give something up, e.g., to limit their questioning in some way. And remember that the defense got to question WA (quite harshly, especially in the second trial), and they were certainly not part of any agreement.

Despite those rather vague references in the press to an "agreement," which never mention the terms, I will remain skeptical that one exists absent someone posting the agreement itself. As far as I can tell, it was never was posted on the docket (unlike, say, LR's agreement with the state, which I've attached). It's quite possible--indeed more than likely--that the (non-lawyer) reporters misunderstood the source of the immunity, i.e., whether it was a "deal" rather than the statute. And given FL's very strong sunshine laws, I'm virtually certain that one of the attorneys reporting on the case (e.g., Mentour Lawyer) would have requested and posted any such agreement.

If I'm representing Wendi and she gets a subpoena from the state I'm going to move to quash the subpoena. It isn't a simple matter that she has to show up or be held in contempt. For the prosecution to move forward under those circumstances it will be left to the judge to determine what immunity will be granted pursuant to the statute and Wendi would most certainly be given great deference (judges in Florida are required to weigh in favor of the defendant's rights in such cases) -- something the prosecution most definitely would want to avoid at all costs. For a high profile defendant who is represented by high paid attorneys there will ALWAYS be discussions and an agreement with the prosecution.

We know her attorneys did not move to quash the subpoena and the judge did not make any determination. Thus, her testimony had to be under an agreement reached between her attorneys and the prosecution.

Obviously, Wendi would not have taken the stand without a clear understanding of what immunity the prosecution was granting. Where do you think the terms of that grant of immunity were stated? Verbal discussions with her attorneys? I'm genuinely interested in hearing what you think occurred here. I suppose Mentour Lawyer is in a better position to express an opinion on what occurred. If anyone is in contact with him it would be nice to have him weigh in.

EDIT: I realized I'm working on three murder cases in Florida right now and two are high profile. I just shot an e-mail to one of the prosecutors I'm working for and asked him this specific question. As soon as I hear from him I'll share and hopefully we'll all be enlightened and not have to speculate.

 

[vislaw]

Fascinating legal discussions going on here. Doing my lay person best to digest it all--appreciate you all weighing in!

I have a curiosity. What would be the benefit/detriment to trying all of the Adelsons together if they end up getting charged? Or let's just start with Charlie and Donna.

There are huge advantages to trying the Adelsons together. You can see the same factors at work in the Vallow/Daybell murder case in Idaho where Lori Vallow and Chad Daybell are being tried together even though they have fought the joinder. First of all, there is a huge "guilt by association" element when defendants are tried together and one is perceived to be really guilty (I'm looking at you, Charlie). If the jury finds the evidence implicates Charlie there is a tendency to impute that guilt to his alleged co-conspirators even though the judge will tell the jury they must consider each separately.

Furthermore, if a defendant is tried separately, his or her attorney will inevitably try to blame the parties not in the courtroom. Prosecutors hate this and almost always want the defendants in the same barrel so that IF fingers are pointed, it will be in the same proceeding in front of the same jury.

Finally, the state gets a huge advantage in terms of expense and hassle if there is only one trial and one jury.

 

[BSBC]

@vislaw: "Where do you think the terms of that grant of immunity were stated? Verbal discussions with her attorneys? I'm genuinely interested in hearing what you think occurred here."

I think that the terms of the grant of immunity were provided by the statute: "no testimony so given [pursuant to a subpoena] or evidence so produced shall be received against the person upon any criminal investigation or proceeding." Fla. Stat. Sec. 914.04. That's it; there's no need to have an "agreement" for the testimony because the immunity is "self-executing" (as explained by the court in Jenny v. State), i.e., it's automatic, by operation of law, obviating the need for any deal. I find it highly implausible that there would be some verbal agreement between the state and WA limiting the scope of her testimony. Were there any such agreement, I'm sure WA's attorneys would have insisted it be in writing. And again, the defense, which had the opportunity to question WA, certainly wasn't party to any agreement, so it wouldn't have done much good for WA to have an agreement with just the state limiting the scope of her testimony.

I think what happened is that the state subpoenaed WA, and her lawyers concluded that she must testify pursuant to Sec. 914.04. This is confirmed by the following statement by the court in Magbanua v. State, 281 So. 3d 523 (1st Dist. 2019): "Adelson admitted that she would testify at trial if subpoenaed by the State because she would be granted immunity for her testimony." That "grant[]" is provided by Sec. 914.04, not the grace of the prosecutors.

 

[vislaw]

@vislaw: "Where do you think the terms of that grant of immunity were stated? Verbal discussions with her attorneys? I'm genuinely interested in hearing what you think occurred here."

I think that the terms of the grant of immunity were provided by the statute: "no testimony so given [pursuant to a subpoena] or evidence so produced shall be received against the person upon any criminal investigation or proceeding." Fla. Stat. Sec. 914.04. That's it; there's no need to have an "agreement" for the testimony because the immunity is "self-executing" (as explained by the court in Jenny v. State), i.e., it's automatic, by operation of law, obviating the need for any deal. I find it highly implausible that there would be some verbal agreement between the state and WA limiting the scope of her testimony. Were there any such agreement, I'm sure WA's attorneys would have insisted it be in writing. And again, the defense, which had the opportunity to question WA, certainly wasn't party to any agreement, so it wouldn't have done much good for WA to have an agreement with just the state limiting the scope of her testimony.

I think what happened is that the state subpoenaed WA, and her lawyers concluded that she must testify pursuant to Sec. 914.04. This is confirmed by the following statement by the court in Magbanua v. State, 281 So. 3d 523 (1st Dist. 2019): "Adelson admitted that she would testify at trial if subpoenaed by the State because she would be granted immunity for her testimony." That "grant[]" is provided by Sec. 914.04, not the grace of the prosecutors.

I just spoke with the prosecutor I'm working with on a murder case in another major Florida city. He says there would most definitely be a negotiated agreement and that it would be reduced to writing. He also said that it would have been disclosed to counsel for both Magbanua and Garcia as Brady material or as part of discovery. Of course, that raises the issue of how the public can get a copy but I do agree with all of you that Florida law would seem to require its production if a proper request is made.

The prosecutor is one of the lead D.A.s in the office and he stressed that this type of negotiation is expected and always takes place when a witness is high profile and represented by good counsel. He says that they generally contact the witness's counsel to discuss the matter before issuing a subpoena and that if the witness is truly a person of interest or a suspected co-conspirator both sides want to reach an agreement rather than risk a kerfuffle in court where the judge has to issue a ruling that neither side may be prepared for.

I also noted this language in the Petition for Writ of Certiorari filed by Katie in response to Wendi's counsel objecting to their subpoena attempting to take her deposition. The court dismissed the subpoena by specifically noting that it was expected the State and Mabganua would have an agreement as to which questions would be asked:

"The State has stipulated that it will only use Adelson’s trial testimony for very limited purposes, such as the nature of her relationship with her ex-husband. The scope and nature of Adelson’s trial testimony may contextually form a basis for post-trial relief—or not—depending on how the matter is handled. Presumably the State and Adelson will have agreed upon the questions she will answer in advance of her trial testimony, Magbanua will be apprised of them, and the trial court will hear and resolve objections and issues raised, minimizing or eliminating potential prejudice to Magbanua."

 

[katiecoolady]

There are huge advantages to trying the Adelsons together. You can see the same factors at work in the Vallow/Daybell murder case in Idaho where Lori Vallow and Chad Daybell are being tried together even though they have fought the joinder. First of all, there is a huge "guilt by association" element when defendants are tried together and one is perceived to be really guilty (I'm looking at you, Charlie). If the jury finds the evidence implicates Charlie there is a tendency to impute that guilt to his alleged co-conspirators even though the judge will tell the jury they must consider each separately.

Furthermore, if a defendant is tried separately, his or her attorney will inevitably try to blame the parties not in the courtroom. Prosecutors hate this and almost always want the defendants in the same barrel so that IF fingers are pointed, it will be in the same proceeding in front of the same jury.

Finally, the state gets a huge advantage in terms of expense and hassle if there is only one trial and one jury.

Oh, that makes sense. I would be concerned in a Charlie/Donna scenario that a jury might decide to convict him and spare her simply because of her age--kind of like the one juror who hung KM's first trial. Would that be an anomaly do you think?

 

[BSBC]

"He also said that it would have been disclosed to counsel for both Magbanua and Garcia as Brady material or as part of discovery. Of course, that raises the issue of how the public can get a copy but I do agree with all of you that Florida law would seem to require its production if a proper request is made." Again, it's telling that (as far as I can tell, and I've looked), no such agreement was ever posted to the docket. Given the high level of interest in this case, and Mentour Lawyer's and others' intense scrutiny of every filing and piece of evidence in this case, the failure of anyone to produce any such agreement is strongly suggestive of its non-existence.

 

[vislaw]

Oh, that makes sense. I would be concerned in a Charlie/Donna scenario that a jury might decide to convict him and spare her simply because of her age--kind of like the one juror who hung KM's first trial. Would that be an anomaly do you think?

That is a real consideration -- and one that applies to Harvey as well. Even though they are not supposed to consider such things, jurors are human. Age, health, and worrying about who will take care of the kids shouldn't be part of the deliberations, but probably will affect the decisions of some jurors. On the other hand, my personal opinion is that Donna's vile and spiteful emails will override such sympathy. She blatantly urged her daughter to lie under oath and showed complete disrespect of the court system and any rights Dan had under the law.

 

[katiecoolady]

That is a real consideration -- and one that applies to Harvey as well. Even though they are not supposed to consider such things, jurors are human. Age, health, and worrying about who will take care of the kids shouldn't be part of the deliberations, but probably will affect the decisions of some jurors. On the other hand, my personal opinion is that Donna's vile and spiteful emails will override such sympathy. She blatantly urged her daughter to lie under oath and showed complete disrespect of the court system and any rights Dan had under the law.

Agree completely. I suspect they will do everything they can to keep them out of court but they don't have any legs to stand on do they?

 

[vislaw]

"He also said that it would have been disclosed to counsel for both Magbanua and Garcia as Brady material or as part of discovery. Of course, that raises the issue of how the public can get a copy but I do agree with all of you that Florida law would seem to require its production if a proper request is made." Again, it's telling that (as far as I can tell, and I've looked), no such agreement was ever posted to the docket. Given the high level of interest in this case, and Mentour Lawyer's and others' intense scrutiny of every filing and piece of evidence in this case, the failure of anyone to produce any such agreement is strongly suggestive of its non-existence.

I hear you and agree it is a fascinating question with respect to it not being on the docket. Obviously, we Websleuth nerds are not going to rest until we either get a copy of the agreement or confirmation it does not exist. I think you are dead wrong concluding there is no agreement because you haven't seen it posted to the docket. However, I can't definitively prove otherwise at this point. I believe I have enough contacts and connections to get a definitive answer, though. So stay tuned.