FL - FSU Law Professor Dan Markel Murdered by Hitmen *4 Guilty* #25

[Going Rogue]

I’m no legal scholar, but I did stay at a Holiday Inn Express once.

One of the legal scholars who appears on these various shows is Professor Jo Potuto, she’s very good and doesn’t trash the other hosts at all. Her opinion, as I recall, is that this conflict should have been obvious to everyone involved from the beginning. In my opinion, that’s not exactly placing “blame.”

Recall that in 2016, at the time of the initial arrests, Markus represented Charlie. I believe that at that time, Rash represented Donna and Harvey. I believe he even put out a statement on their behalf, calling the state’s theory “fanciful fiction.” (Where have we heard that before?)

Then, in 2022, Markus withdrew and suddenly Rash represented Charlie. In my opinion, the conflict arose at that point. In my opinion, in order to represent Charlie, Rash would have needed to obtain a waiver from both Charlie and Donna regarding his prior representation of Donna. Even then, a court might have determined the conflict was not waivable (as it did just now.).

As far as I know, nobody raised this issue when Rash took over Charlie’s representation. I know that I recall spotting this conflict and wondering about it at the time.

Everett, I believe, was not the judge assigned to the case in 2016, he was only put on the case for Katie’s second trial. So it’s possible, in my opinion, that when Rash took over Charlie’s representation, Everett may not have been aware of the statement Rash put out on behalf of Donna in 2016, or that Rash had represented Donna before he represented Charlie. But in my opinion, I believe the state should have been aware of it, and I question why the potential conflict was never raised or addressed.

Unfortunately that’s the exact conflict that is arising now, and that is why Rash had to recuse himself: because CHARLIE did not waive the conflict presented by Rash’s representation of DONNA.

At Donna’s pretrial, Everett seemed to me to be very concerned about whether DONNA waived the conflict presented by Rash’s previous representation of CHARLIE. He did not address the OTHER conflict, whether CHARLIE waived the conflict presented by Rash’s representation of DONNA. Had he done so, we might have avoided the situation this case now finds itself in.

Professor Potuto brought up these points on various panel shows.

In my opinion, Rash was hired as Donna’s lawyer from the beginning, and therefore, in my opinion, he could never have provided objective conflict-free representation of Charlie at all. The jail calls immediately after Charlie’s conviction, in which, to me, Donna appears to be going to him for legal advice, only bear that out.

Now, because this conflict wasn’t addressed when it arose with Rash’s representation of Charlie, Rash can’t represent Donna (his original client), and Charlie may, in my opinion, have a successful post-conviction claim for ineffective assistance of counsel. The result is a delay in the judicial process, as well as the state possibly having to re-try Charlie should he succeed with his claim for post-conviction relief.

It’s ironic that it took the retention of appellate counsel on Charlie’s behalf to finally draw attention to this original conflict. I do wonder how much of a hand Donna and/or Rash had in selecting that representation.

Yes, I heard her a couple of times and I would love to hear more from her – someone that is qualified and humble without the ‘I told you so’ attitude / "I saw this coming". The ‘conflict’ was obvious to everyone from the beginning and I never heard her say is wasn’t on anyone’s radar. Rather, she said (on STS) that she didn’t recall anyone identifying the ‘potential’ issue of Charlie revoking his waiver – basically no one had their eyes on that specific ‘potential’ action. I agree with her 100% and that is exactly what happened and I don’t ever recall anyone raising this ‘potential’ issue. Charlie’s decision to revoke his waiver is what completely derailed this trial and she made the point that it would have been FAR worse had Charlie waived it mid trial. I agree with her 100% - I never heard anyone raise the potential issue of Charlie revoking his waiver.

Okay, so we got one member of that panel – who else?

 

[amicuscurie]

Yes, I heard her a couple of times and I would love to hear more from her – someone that is qualified and humble without the ‘I told you so’ attitude / "I saw this coming". The ‘conflict’ was obvious to everyone from the beginning and I never heard her say is wasn’t on anyone’s radar. Rather, she said (on STS) that she didn’t recall anyone identifying the ‘potential’ issue of Charlie revoking his waiver – basically no one had their eyes on that specific ‘potential’ action. I agree with her 100% and that is exactly what happened and I don’t ever recall anyone raising this ‘potential’ issue. Charlie’s decision to revoke his waiver is what completely derailed this trial and she made the point that it would have been FAR worse had Charlie waived it mid trial. I agree with her 100% - I never heard anyone raise the potential issue of Charlie revoking his waiver.

Okay, so we got one member of that panel – who else?

The issue of him revoking it now might not have come up if the issue of whether a waiver even existed had been examined when Rash first began representing him. It’s very possible the court would have determined at that time that it was unwaivable.

I think Tim Jansen is very good though in my understanding he is a Tallahassee defense lawyer, and I think his opinions are best considered with that in mind. I think STS generally has very good legal panelists. I think AA Legal Focus is good and has good panelists.

I don’t think one necessarily has to agree with everything a panelist says in order to find their opinion useful and interesting. I think many people seem to believe otherwise, and when a panelist says something they do not agree with, some people seem to develop a personal animus toward them.

One thing about lawyers, in my experience, is that they’re able to see multiple sides of an issue, and argue different sides, and it is not personal. With a good lawyer, you might not even be able to tell what their personal opinion is unless they specifically say that it is, in fact, their personal opinion. People seem to take a lot of things personally in the world of true crime that, if you ask me, they shouldn’t.

 

[opt]

We don't 100% know that Charlie gave DR an oral waiver. DR claimed that happened, but oral agreements are subject to misinterpretation, faulty memory, and bad faith.

DR said he "memorialized" the oral waiver but never got a signature. That's almost certainly what happened. I can't imagine why DR would lie about it in order to derail Donna's trial at the cost of his own reputation, even such as it was.

 

[amicuscurie]

We don't 100% know that Charlie gave DR an oral waiver. DR claimed that happened, but oral agreements are subject to misinterpretation, faulty memory, and bad faith.

DR said he "memorialized" the oral waiver but never got a signature. That's almost certainly what happened. I can't imagine why DR would lie about it in order to derail Donna's trial at the cost of his own reputation, even such as it was.

It’s strange to me that Rash went on record (STS) saying not only that he had gotten written waivers from both of them, but that these had been obtained after he had both of them meet with an independent counsel.

 

[clearskies1]

I’m no legal scholar, but I did stay at a Holiday Inn Express once.

One of the legal scholars who appears on these various shows is Professor Jo Potuto, she’s very good and doesn’t trash the other hosts at all. Her opinion, as I recall, is that this conflict should have been obvious to everyone involved from the beginning. In my opinion, that’s not exactly placing “blame.”

Recall that in 2016, at the time of the initial arrests, Markus represented Charlie. I believe that at that time, Rash represented Donna and Harvey. I believe he even put out a statement on their behalf, calling the state’s theory “fanciful fiction.” (Where have we heard that before?)

Then, in 2022, Markus withdrew and suddenly Rash represented Charlie. In my opinion, the conflict arose at that point. In my opinion, in order to represent Charlie, Rash would have needed to obtain a waiver from both Charlie and Donna regarding his prior representation of Donna. Even then, a court might have determined the conflict was not waivable (as it did just now.).

As far as I know, nobody raised this issue when Rash took over Charlie’s representation. I know that I recall spotting this conflict and wondering about it at the time.

Everett, I believe, was not the judge assigned to the case in 2016, he was only put on the case for Katie’s second trial. So it’s possible, in my opinion, that when Rash took over Charlie’s representation, Everett may not have been aware of the statement Rash put out on behalf of Donna in 2016, or that Rash had represented Donna before he represented Charlie. But in my opinion, I believe the state should have been aware of it, and I question why the potential conflict was never raised or addressed.

Unfortunately that’s the exact conflict that is arising now, and that is why Rash had to recuse himself: because CHARLIE did not waive the conflict presented by Rash’s representation of DONNA.

At Donna’s pretrial, Everett seemed to me to be very concerned about whether DONNA waived the conflict presented by Rash’s previous representation of CHARLIE. He did not address the OTHER conflict, whether CHARLIE waived the conflict presented by Rash’s representation of DONNA. Had he done so, we might have avoided the situation this case now finds itself in.

Professor Potuto brought up these points on various panel shows.

In my opinion, Rash was hired as Donna’s lawyer from the beginning, and therefore, in my opinion, he could never have provided objective conflict-free representation of Charlie at all. The jail calls immediately after Charlie’s conviction, in which, to me, Donna appears to be going to him for legal advice, only bear that out.

Now, because this conflict wasn’t addressed when it arose with Rash’s representation of Charlie, Rash can’t represent Donna (his original client), and Charlie may, in my opinion, have a successful post-conviction claim for ineffective assistance of counsel. The result is a delay in the judicial process, as well as the state possibly having to re-try Charlie should he succeed with his claim for post-conviction relief.

It’s ironic that it took the retention of appellate counsel on Charlie’s behalf to finally draw attention to this original conflict. I do wonder how much of a hand Donna and/or Rash had in selecting that representation.

I wonder what waivers allegedly exist re DR's initial apparent client switch -- from representing DA to representing CA. Also, if DA paid for CA's defense, was there pressure to go with DR? Can you imagine if we have to go through a re-trial of CA? I think it's very possible that will happen. It will take time to get an appellate ruling on CA... I don't think this will happen, but it's interesting to think about a trial where DA and CA are co-defendants. JMO.

 

[IQuestion]

It’s strange to me that Rash went on record (STS) saying not only that he had gotten written waivers from both of them, but that these had been obtained after he had both of them meet with an independent counsel.

I stayed at a Holiday Inn Express and had the cinnammon rolls, too. But still have suspicions if it takes a man more than 5 words to answer a straight forward question. Passing the bar doesn't make his explanations or opinions worth a hill of beans if he fails to properly address his obligations. All the legal scholars can chime in...but they won't make up the majority of any impaneled jury. Hmmm....this is the link and begins @ 26:00 to 30:00 of video:

JW: "I have to ask you about some conflicts here, you were Donna Adelson's and I believe Harvey's attorney first. Uh, Charlie was with David Oscar Marcus, a pretty well known criminal defense attorney. Uh, do you fear some sort of conflict and did Charlie and or Donna have to sign a waiver in order for you to represent her now and did you ever stop representing her?"
Watch DR's face closely....DR loses his smile and I can see the wheels turning. To me, he begins to make up a story to cover what should have been a simple Yes or No answer. IMO he knew then he had a major problem and gets very convoluted in his answer. He only states it would be prudent to get independent council.
DR: "The most prudent way to do it is with an independent council advising them so that I am not part of that decision making process...."

 

[amicuscurie]

I stayed at a Holiday Inn Express and had the cinnammon rolls, too. But still have suspicions if it takes a man more than 5 words to answer a straight forward question. Passing the bar doesn't make his explanations or opinions worth a hill of beans if he fails to properly address his obligations. All the legal scholars can chime in...but they won't make up the majority of any impaneled jury. Hmmm....this is the link and begins @ 26:00 to 30:00 of video:

JW: "I have to ask you about some conflicts here, you were Donna Adelson's and I believe Harvey's attorney first. Uh, Charlie was with David Oscar Marcus, a pretty well known criminal defense attorney. Uh, do you fear some sort of conflict and did Charlie and or Donna have to sign a waiver in order for you to represent her now and did you ever stop representing her?"
Watch DR's face closely....DR loses his smile and I can see the wheels turning. To me, he begins to make up a story to cover what should have been a simple Yes or No answer. IMO he knew then he had a major problem and gets very convoluted in his answer. He only states it would be prudent to get independent council.
DR: "The most prudent way to do it is with an independent council advising them so that I am not part of that decision making process...."

Interesting. It certainly gave me the impression, when I first heard this interview, that they did have an independent counsel advising them. Why else would he have mentioned that it would be prudent to do so? I do note that when I listen to it again, it seems to me he does not actually say that is what happened, though in my opinion it is strongly implied. All very interesting, to me.

 

[I am not Sherlock H.]

Here's the order.

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"The withdrawal of attorney Daniel Rashbaum became necessary when he engaged in a conflicted representation falling short of the ethical obligations for members of the Florida Bar."

The judge is pissed off!

Thanks for sharing this @ch_13 ….. and yikes…… and as you quoted from that October 7, 2024 ‘Order Disqualifying Defense Counsel’:

“The withdrawal of attorney Daniel Rashbaum became necessary when he engaged in a conflicted representation falling short of the ethical obligations for members of the Florida Bar.”

What exactly is the Florida Bar position on this matter? And what is the position of the Bar’s Board Disciplinary Review Committee (or the Office of Disciplinary Council) on it? Unbelievable. Sure hope someone is conducting an appropriate disciplinary review into this matter. IANAL. MOO