FL - FSU Law Professor Dan Markel Murdered by Hitmen *4 Guilty* #24

[newbysleuther]

Interesting new Motion on the docket - any attorney out there care to weigh in?

 

[amicuscurie]

Interesting new Motion on the docket - any attorney out there care to weigh in?View attachment 531665

In my understanding, that is the conflict. Rashbaum used to represent Charlie, now he represents Donna. If Charlie testifies, Rashbaum, as counsel for the defense, would be able to cross-examine him. Potentially, that could pose a conflict, because Rashbaum used to represent him, and presumably he might know privileged information which he could elicit on cross. Such information might be helpful to Donna, but not helpful, or even damaging, to Charlie and his appeal.

This appears to me to be a Response to a Motion filed by Charlie’s appellate counsel to prevent Rashbaum from cross examining Charlie, because of this potential conflict .

The response appears to me to state that there was an “ethical wall” created so that Morris does not know any confidential or privileged information Rashbaum may have gotten from Charlie. Nevertheless, it states that “third party counsel” has been retained specifically for the purpose of cross-examining Charlie should the need arise.

The final paragraph is interesting to me, because though it does appear to me to say that the defense consulted with both Ufferman and Cappleman, it is unclear to me from the wording whether either of them expressly agreed that the retention of third party counsel to cross examine Charlie would resolve the conflict, or whether they would object to this proposed solution.

 

[cottonweaver]

Prof Potuto & Tim Jansen weigh in on that new motion

Pretty much every issue and question is addressed by the Prof & by Tim J

 

[amicuscurie]

If Charlie does not testify because of this conflict, and if Donna does take the stand in her own defense, I don’t think in that scenario she would be bound by the double extortion story. So, in my opinion, it’s entirely possible that the text between Charlie and Donna after Sig’s arrest, which the judge admitted for the very limited purpose of rebutting the double extortion story, won’t come in.

 

[cottonweaver]

dbm

 

[legalmomma]

Interesting new Motion on the docket - any attorney out there care to weigh in?View attachment 531665

Well, I am an atty but not a criminal atty. Rashbaum representing both Charlie and Donna is a huge issue for her. And these filings show that. Even with a waiver of conflict of interest. "Ethical Wall" LOL We used Chinese Wall in some cases. How this will result, we shall see.

 

[amicuscurie]

Well, I am an atty but not a criminal atty. Rashbaum representing both Charlie and Donna is a huge issue for her. And these filings show that. Even with a waiver of conflict of interest. "Ethical Wall" LOL We used Chinese Wall in some cases. How this will result, we shall see.

If the defense is anything other than double extortion, it’s going to be more difficult for the state, in my opinion, because I don’t believe they will be prepared.

And, in my opinion, the only person who can offer the double extortion story is Charlie.

My understanding is that this motion is to prevent Charlie from being cross-examined. If he can’t be cross-examined, I don’t think he can testify.

 

[IQuestion]

Well, well, well....Charlie's smile "seems" to be obvious, now. "He's baaaack!" Quoting TimJ, "They are playing games." Chinese wall or Chinese checkers?

 

[vislaw]

Interesting new Motion on the docket - any attorney out there care to weigh in?View attachment 531665

I don't see how this won't cause a delay in jury selection. And given Charlie received notice he was going to be a witness back in July there is no excuse for waiting until the day before jury selection to raise this. The judge is going to be very unhappy with the defense.

 

[Going Rogue]

Prof Potuto & Tim Jansen weigh in on that new motion

Pretty much every issue and question is addressed by the Prof & by Tim J

I read the motion and I don’t see the issue or why anyone is up in arms and views this as a nefarious tactical move by the defense. They are reacting to a decision by Charlie’s appellate attorney who is doing his job and it should have been expected that the appellate attorney would have raised the issue about Charlie not waving his privilege. I watched the STS live and don’t agree with Professor Jo – she was taking the position that this was some nefarious action by Donna’s defense team. The defense responded appropriately to the appellate attorney advising his client not to waive privilege and there was nothing nefarious done by Donna’s defense team. The appellate attorney could give two sh_ts about Donna. His job it to protect Charlie’s best interest – not to make decisions that make Donna’s case easier for the state. In the motion, the defense states that they believe an ethical wall was built between Morris & Charlie. I would assume the same and that Morris could do the cross. The defense has ALSO brought on another attorney ‘IF’ the need arises – I view this as them doing the right thing and being proactive. What would be the need for the ‘third party’ council? I would imagine the third party would only be needed ‘IF’ it is determined by Judge Everett that Morris was tainted. The defense is making it clear they believe an ethical wall was built. Charlie’s appellate attorney is raising the flag that the ethical wall does not exist. This is something Judge Everett needs to flush out. Pretty standard stuff and I’m sure Judge Everett can easily resolve this issue. That may include legal waivers that the defense sign and agree to as a precaution and to avoid any ‘potential’ motion for mistrial. Seems like standard stuff as long as it’s addressed properly before the start of the trial.

 

[Knitpicker]

 

[amicuscurie]

I read the motion and I don’t see the issue or why anyone is up in arms and views this as a nefarious tactical move by the defense. They are reacting to a decision by Charlie’s appellate attorney who is doing his job and it should have been expected that the appellate attorney would have raised the issue about Charlie not waving his privilege. I watched the STS live and don’t agree with Professor Jo – she was taking the position that this was some nefarious action by Donna’s defense team. The defense responded appropriately to the appellate attorney advising his client not to waive privilege and there was nothing nefarious done by Donna’s defense team. The appellate attorney could give two sh_ts about Donna. His job it to protect Charlie’s best interest – not to make decisions that make Donna’s case easier for the state. In the motion, the defense states that they believe an ethical wall was built between Morris & Charlie. I would assume the same and that Morris could do the cross. The defense has ALSO brought on another attorney ‘IF’ the need arises – I view this as them doing the right thing and being proactive. What would be the need for the ‘third party’ council? I would imagine the third party would only be needed ‘IF’ it is determined by Judge Everett that Morris was tainted. The defense is making it clear they believe an ethical wall was built. Charlie’s appellate attorney is raising the flag that the ethical wall does not exist. This is something Judge Everett needs to flush out. Pretty standard stuff and I’m sure Judge Everett can easily resolve this issue. That may include legal waivers that the defense sign and agree to as a precaution and to avoid any ‘potential’ motion for mistrial. Seems like standard stuff as long as it’s addressed properly before the start of the trial.

It seems to me that this conflict, and in particular the issue regarding cross-examination of Charlie, should have been apparent to Charlie’s appellate counsel as soon as Charlie was listed as a witness, and so I do question why this Motion was only made only, on the eve of trial.

Regardless of intent, as I understand it, the practical effect of the Motion, should it be granted, would be for Charlie to be effectively precluded from testifying for the state, as he cannot be cross-examined. If the defense does not call him, then he does not testify at all, and in my understanding that would mean that there would be no witness to tell the double extortion story.

In my opinion, that has consequences for Donna’s defense, and it may be helpful for her.

 

[Missyrocks5]

Well, well, well....Charlie's smile "seems" to be obvious, now. "He's baaaack!" Quoting TimJ, "They are playing games." Chinese wall or Chinese checkers?

Yes, why he had the smirk. This conflict has always presented a problem. They created it. They knew they would lose that Motion in Limine on Corbitt. They're playing games. Also, they waited until now knowing how much work the prosecution is putting in this past weekend to pull the rug out from under them.

 

[Going Rogue]

It seems to me that this conflict, and in particular the issue regarding cross-examination of Charlie, should have been apparent to Charlie’s appellate counsel as soon as Charlie was listed as a witness, and so I do question why this Motion was only made only, on the eve of trial.

Regardless of intent, as I understand it, the practical effect of the Motion, should it be granted, would be for Charlie to be effectively precluded from testifying for the state, as he cannot be cross-examined. If the defense does not call him, then he does not testify at all, and in my understanding that would mean that there would be no witness to tell the double extortion story.

In my opinion, that has consequences for Donna’s defense, and it may be helpful for her.

The curve ball is Charlie’s appellate attorney is raising the flag that he does not believe an ethnical wall exists between Morris and Charlie. IMO, he is just being overly cautious – he would have no idea if an ethical walls exists. My main point is this motion being filed by Rashbaum and Morris is standard procedure based on the motion filled by Charlie’s appellate attorney, but I’m not surprised it will be viewed as some nefarious tactical move by Donna's defense. They are just proactively covering the bases AND they are also stating an ethical wall does exist between Morris and Charlie. Morris was hired by Donna after Charlie conviction and had nothing to do with Charlie’s trial. As long as Rahsbaum didn’t share any ‘privileged’ information with Morris an ethical wall exists. Judge Everett can solve this issue in his sleep. I’d be willing to bet the third party attorney will not be needed.

 

[vislaw]

I read the motion and I don’t see the issue or why anyone is up in arms and views this as a nefarious tactical move by the defense. They are reacting to a decision by Charlie’s appellate attorney who is doing his job and it should have been expected that the appellate attorney would have raised the issue about Charlie not waving his privilege. I watched the STS live and don’t agree with Professor Jo – she was taking the position that this was some nefarious action by Donna’s defense team. The defense responded appropriately to the appellate attorney advising his client not to waive privilege and there was nothing nefarious done by Donna’s defense team. The appellate attorney could give two sh_ts about Donna. His job it to protect Charlie’s best interest – not to make decisions that make Donna’s case easier for the state. In the motion, the defense states that they believe an ethical wall was built between Morris & Charlie. I would assume the same and that Morris could do the cross. The defense has ALSO brought on another attorney ‘IF’ the need arises – I view this as them doing the right thing and being proactive. What would be the need for the ‘third party’ council? I would imagine the third party would only be needed ‘IF’ it is determined by Judge Everett that Morris was tainted. The defense is making it clear they believe an ethical wall was built. Charlie’s appellate attorney is raising the flag that the ethical wall does not exist. This is something Judge Everett needs to flush out. Pretty standard stuff and I’m sure Judge Everett can easily resolve this issue. That may include legal waivers that the defense sign and agree to as a precaution and to avoid any ‘potential’ motion for mistrial. Seems like standard stuff as long as it’s addressed properly before the start of the trial.

I understand your point and certainly would not call any of this "nefarious." However, Charlie accepted notice he was going to be called as a witness in July and I cannot see any justification for waiting until the day before a jury is impaneled to raise this with the court and trial judges hate this sort of last minute interference with a long scheduled trial setting. I'm reminded of the motion filed by a non-participating attorney in the Chad Daybell case the weekend before trial and how livid the judge was. I disagree with you that this is "pretty standard stuff" that Judge Everett "can easily resolve." Any resolution that does not include a clear on-the-record waiver by Donna that she will not raise the issue on appeal would be a strong appellate point if she is convicted and I cannot see Rashbaum letting her waive those rights. In my opinion the court cannot impanel a jury without resolving this issue and that creates an immense problem now.

 

[Zedzded]

It seems to me that this conflict, and in particular the issue regarding cross-examination of Charlie, should have been apparent to Charlie’s appellate counsel as soon as Charlie was listed as a witness, and so I do question why this Motion was only made only, on the eve of trial.

Yeah we mentioned it many times on here and Reddit. It was always going to be an issue.

 

[Going Rogue]

I understand your point and certainly would not call any of this "nefarious." However, Charlie accepted notice he was going to be called as a witness in July and I cannot see any justification for waiting until the day before a jury is impaneled to raise this with the court and trial judges hate this sort of last minute interference with a long scheduled trial setting. I'm reminded of the motion filed by a non-participating attorney in the Chad Daybell case the weekend before trial and how livid the judge was. I disagree with you that this is "pretty standard stuff" that Judge Everett "can easily resolve." Any resolution that does not include a clear on-the-record waiver by Donna that she will not raise the issue on appeal would be a strong appellate point if she is convicted and I cannot see Rashbaum letting her waive those rights. In my opinion the court cannot impanel a jury without resolving this issue and that creates an immense problem now.

The issue was created by Charlie’s appellate attorneys motion, not Rashbaum and Morris – not sure when Ufferman filed the motion, but I assume it was after last weeks case management hearing otherwise the court would have raised this potential issue at the last hearing - Charlie is a states witness not a witness for the defense. All Judge Everett needs to do is confirm with Morris and Rashbaum that Rashbaum did not share any privileged client attorney information between Charlie & Rashbaum with Morris. The defense is stating in their motion an ethical wall exists – the only way that cannot be true is if information was shared to Morris from Rashbaum. I don’t think Rashbaum or Morris is incompetent or stupid enough to allege in their motion that an ethical wall does indeed exists if it does not.

 

[BearWatcher]

On STS nation, Tim Jansen stated that Charlie was served July 11th via his attorney that the State had him on their witness list. So, this has been known over 60 days.

 

[Going Rogue]

On STS nation, Tim Jansen stated that Charlie was served July 11th via his attorney that the State had him on their witness list. So, this has been known over 60 days.

That’s probably correct... but when was the motion filed by Charlie’s appellate attorney that stated that they believe that an ethical wall does NOT exist between Morris and Charlie? I’d bet it was in the last day or two otherwise it would have been addressed in the last case management hearing unless the prosecution is sleeping at the wheel. I sincerely doubt that Ufferman, Rashbaumn & Morris schemed together to deliver this curveball.

Rashbaum & Morris are not doing anything wrong here. They are actually doing the right thing - first they are stating no ethical wall exists (which I believe to be true) - that’s for Judge Everett to rule on since Ufferman raised that flag AND the defense is also giving the court a plan B – third party council ‘if’ the court has an issue with Morris crossing Charlie.

If I’m missing something here, I’d love to hear other opinions as to how this motion is somehow some attempt at trickery by Rashbaum and Morris - which seems to be how case followers are viewing it.

 

[amicuscurie]

There is no motion filed by Rashbaum and Morris, the motion was filed by counsel for Charlie, who isn’t even a party. The conflict should have been apparent, in my opinion, as soon as Charlie was listed as a witness, and yet they are only raising it now. Make of that what you will.

In my opinion this potentially prejudices the state. They way I see it, they have to either not call Charlie, even to rebut Donna’s defense; call him and accept that Morris will cross examine him and that Morris hasn’t been told any privileged info (it is my hope that the judge will take testimony on that tomorrow); or accept that there will be a new “third party counsel” who will examine him, with no information on who that is, what the Rene turn agreement is, or what knowledge that person may have.

Their state’s trial strategy, in my opinion, is being compromised and essentially dictated by the defense. All of this should have been resolved as soon as the conflict became apparent, which in my opinion was when Donna retained Rashbaum.

The curve ball is Charlie’s appellate attorney is raising the flag that he does not believe an ethnical wall exists between Morris and Charlie. IMO, he is just being overly cautious – he would have no idea if an ethical walls exists. My main point is this motion being filed by Rashbaum and Morris is standard procedure based on the motion filled by Charlie’s appellate attorney, but I’m not surprised it will be viewed as some nefarious tactical move by Donna's defense. They are just proactively covering the bases AND they are also stating an ethical wall does exist between Morris and Charlie. Morris was hired by Donna after Charlie conviction and had nothing to do with Charlie’s trial. As long as Rahsbaum didn’t share any ‘privileged’ information with Morris an ethical wall exists. Judge Everett can solve this issue in his sleep. I’d be willing to bet the third party attorney will not be needed.