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

 

[Charlot123]

Their lives are messed up. I see two different paths they can go down. Accept their family, including their Mum, was involved in murder of their father and, as hard as it might be, do everything in their power to ensure none of them see the light of day again. Or they can choose the Phillip Pilmar path.

His Mum and Uncle killed his Dad, he denied that they did it for many years and I'm not sure if he now acknowledges they were involved, but has publicly stated that "it happened a long time ago", "people need to move on" "his Mum is a lovely, kind person", "his Mum should be released." His Dad was stabbed over 35 times and slowly bled to death over a few hours. Note Phillip Pilmar is a District Attorney. A spineless District Attorney.

If the Markel boys decided to stick by their Mum, it will be to their detriment. They will be never be free. And as harsh as it may seem. They are no longer boys, they are young men who know right from wrong and sometimes you have to step up to the plate and do the right thing. AJ was a 6 year old boy, who got up in court, in front of a judge, jury, lawyers and family members and bravely testified against his mother as he witnessed her killing his sister. She was subsequently convicted.

I hope the Markel boys do the right thing. I don't think they will though. They are faced with a horrible moral dilemma, but if a 6 year old can do the right thing, they can.

God forbid anyone ever being in such shoes.

Someone told me about own experience of being raised by some relatives because dad killed mom, and finally meeting dad decades later, as an adult. That person didn’t feel any hatred, on the contrary, they were so darn happy to meet a single parent in their life. It was the father’s fault that the child was practically orphaned, but how this double void felt for the growing child we also have to understand.

I can’t advise Markel’s kids what to do. Whatever they find will be easier for them to live with.

We, the society, are another thing. The Adelsons, at least the ones accused as of now, have, with shockingly hubristic egotism, committed a crime. We are thinking in terms of justice and morals. The children are not the society. They are the insiders who have had too many losses in their lives. Their choice is not in the area of right, wrong or even, justice.

 

[Charlot123]

You're basing your comment on WA being a good mother. She's not. She conspired to execute the boys father. She has sociopathic and narcissistic tendencies, completely mal-adjusted, egocentric and totally lacking in empathy. The more time the boys spend with her the more broken they will be. At least one of them is visiting his Grandma in jail, presumably believing in her innocence, something which will no doubt carry on throughout his life. Can you imagine carrying that burden of having your entire family locked up for life for a crime they didn't commit? He might spend his entire life advocating for their freedom. The sooner the boys are out of WA's poisonous grasp the better.

We assume that the kids development depends on who they are raised by. Only partially. Genetics might play a bigger role. It usually does.

However, the situation the kids are put in today (forced to take sides) screams for a good therapist. Otherwise it is impossible to grow up without your inner world being split, and that causes antisocial personality in men, borderline traits in women, poor self-esteem, mistrust of others, etc, etc. And we know how it's filled.

I am trying to imagine how can a grown up adult avoid to take sides. It is easy when it is not your family. Even with indirect family, it is easy, you can cynically say, "well, you never expected your second uncle to act like a model family man, did you?", and step aside. But whether your child or your parent, either of these situations cuts through the heart.

I am just thinking that the only way to avoid splitting would be actually to use planned egotistic adaptation. "I don't care what others say about my mom. Let me close that door. In the now - is she good to me? Does she love me? Can I rely on her?" The same about grandma. The same about the Markel's side. I don't know where the visitation rights are now, but they should happen. "I know if I get into all that story, it will crush me. But do I feel well when I am with them? Are they funny, are they interesting, do they take me places?" Same about their dead father. He was an active member of the community, do I like the community? Do I like his ideas? Should i read what he wrote? I think the only way to protect oneself from falling apart, short of taking one side only, is to establish direct rays of "here and now" feelings about all the participants and to close all past behind a door, otherwise the kids will feel torn apart. Even if they grow with WA, the most toxicity is coming not from WA herself, well maybe from her genes, but it is the inner splitting of the world into "who's good and who's bad?" that's coming with the need to take sides that is deleterious. JMO.

They have the whole life to sort out what's left behind that closed door as adults. And ironically, they might end up with very diverging views of the situation. But now, as kids, they absolutely need to be in therapy to avoid precisely what we as the society want them to do, to make own judgment. Or - to feel guilty for what adults had resorted to while splitting custody over them. Think of this.

Just my two cents. Sorry for the long-winded post. The most despicable is what the adults have turned these children's lives into.

 

[amicuscurie]

We assume that the kids development depends on who they are raised by. Only partially. Genetics might play a bigger role. It usually does.

However, the situation the kids are put in today (forced to take sides) screams for a good therapist. Otherwise it is impossible to grow up without your inner world being split, and that causes antisocial personality in men, borderline traits in women, poor self-esteem, mistrust of others, etc, etc. And we know how it's filled.

I am trying to imagine how can a grown up adult avoid to take sides. It is easy when it is not your family. Even with indirect family, it is easy, you can cynically say, "well, you never expected your second uncle to act like a model family man, did you?", and step aside. But whether your child or your parent, either of these situations cuts through the heart.

I am just thinking that the only way to avoid splitting would be actually to use planned egotistic adaptation. "I don't care what others say about my mom. Let me close that door. In the now - is she good to me? Does she love me? Can I rely on her?" The same about grandma. The same about the Markel's side. I don't know where the visitation rights are now, but they should happen. "I know if I get into all that story, it will crush me. But do I feel well when I am with them? Are they funny, are they interesting, do they take me places?" Same about their dead father. He was an active member of the community, do I like the community? Do I like his ideas? Should i read what he wrote? I think the only way to protect oneself from falling apart, short of taking one side only, is to establish direct rays of "here and now" feelings about all the participants and to close all past behind a door, otherwise the kids will feel torn apart. Even if they grow with WA, the most toxicity is coming not from WA herself, well maybe from her genes, but it is the inner splitting of the world into "who's good and who's bad?" that's coming with the need to take sides that is deleterious. JMO.

They have the whole life to sort out what's left behind that closed door as adults. And ironically, they might end up with very diverging views of the situation. But now, as kids, they absolutely need to be in therapy to avoid precisely what we as the society want them to do, to make own judgment. Or - to feel guilty for what adults had resorted to while splitting custody over them. Think of this.

Just my two cents. Sorry for the long-winded post. The most despicable is what the adults have turned these children's lives into.

In my opinion, speaking hypothetically, it’s ok to take sides against murder. If the one who commits it, hypothetically, has been legally determined to be a relative, I agree that therapy is definitely necessary for dealing with many issues which would possibly arise from this realization, such as helping you accept what happened and who they are, and helping you to realize that you do not have to follow in their footsteps, and to realize it is not your fault. I do think this would take a long time, and a great deal of therapy. But in my opinion there is never an absolute need to maintain a relationship with a parent, particularly if that parent has harmed you directly or is a toxic person. Apparently Robert Adelson, from a what I understand, made a choice to distance himself.

 

[Going Rogue]

Rule 1.9 from the ABA:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.​

Posting my thoughts on the above expert from the Rule 1.9: 'Duties to Former Clients' from the American Bar Association regarding the very issue we encountered that derailed Donna’s trial. I’m hoping someone with qualified *** by qualified I mean someone with legal credentials *** can explain how my layman interpretation is wrong:

Here is my layman breakdown of Rule 1.9 and why I think it’s unfair to cast aspersions on Jack Campbell, the prosecution team, or Judge Everett – I have seem many criticism of them all based on the latest developments. Further, in my layman opinion, Rashbaum did not break any ethics rules by representing Donna (only based on what is public) and I will explain why:

Rule 1.9 clearly states that a lawyer ‘shall not’ represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client. Can someone please explain how BEFORE Ufferman filed the motion to rescind Charlie’s waiver and object to Rashbaum’s representation of Donna and object anyone on Donna’s legal team from cross-examination of Charlie that you can argue Charlie and Donna’s interests were materially adverse? I understand the 'POTENTIAL' of conflicts arising especially in light of what happened - which is precisely why the ABA addresses this in Rule 1.9. They were clearly materially adverse AFTER Ufferman filed the motion BUT so long as they both agreed to Rashbaum’s representation (they did) and based on Donna’s defense strategy (unknown to anyone outside her legal team) we CAN’T say that PRIOR to Ufferman’s motion Charlie and Donna’s interests were materially adverse.

All those Monday morning quarterbacks assigning varying percentages of blame on both sides fail to mention the ambiguity of Rule 1.9. Maybe I’m wrong in my interpretation which is why I'm posting my thoughts and looking for ‘qualified’ opinions.

 

[amicuscurie]

Rule 1.9 from the ABA:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.​

Posting my thoughts on the above expert from the Rule 1.9: 'Duties to Former Clients' from the American Bar Association regarding the very issue we encountered that derailed Donna’s trial. I’m hoping someone with qualified *** by qualified I mean someone with legal credentials *** can explain how my layman interpretation is wrong:

Here is my layman breakdown of Rule 1.9 and why I think it’s unfair to cast aspersions on Jack Campbell, the prosecution team, or Judge Everett – I have seem many criticism of them all based on the latest developments. Further, in my layman opinion, Rashbaum did not break any ethics rules by representing Donna (only based on what is public) and I will explain why:

Rule 1.9 clearly states that a lawyer ‘shall not’ represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client. Can someone please explain how BEFORE Ufferman filed the motion to rescind Charlie’s waiver and object to Rashbaum’s representation of Donna and object anyone on Donna’s legal team from cross-examination of Charlie that you can argue Charlie and Donna’s interests were materially adverse? I understand the 'POTENTIAL' of conflicts arising especially in light of what happened - which is precisely why the ABA addresses this in Rule 1.9. They were clearly materially adverse AFTER Ufferman filed the motion BUT so long as they both agreed to Rashbaum’s representation (they did) and based on Donna’s defense strategy (unknown to anyone outside her legal team) we CAN’T say that PRIOR to Ufferman’s motion Charlie and Donna’s interests were materially adverse.

All those Monday morning quarterbacks assigning varying percentages of blame on both sides fail to mention the ambiguity of Rule 1.9. Maybe I’m wrong in my interpretation which is why I'm posting my thoughts and looking for ‘qualified’ opinions.

In my opinion, the interests of alleged co-conspirators are generally ALWAYS materially adverse to each other. This is why they generally are not represented by the same attorney, in my experience. Sigfredo and Katie, for example, had different attorneys. (They did not end up testifying against each other, but because each had an attorney who represented ONLY their interests, they retained the option to do so, without presenting any potential conflict for their attorney.)

Why? Because in my understanding, in many instances, the best defense for one co-conspirator would be to point the finger at the other, or to do a deal which implicates the other. Such a defense, in my opinion, can never be ruled out as an option for the client.

If they have the same attorney, any defense for one client which would harm or implicate the other is effectively foreclosed, as is the possibility of one turning on the other to get a deal.

What may be confusing in this case is the fact that Rash represented these clients in sequence and not at the same time. In my opinion the conflict is still present absent an express waiver, and there is no guarantee such a waiver won’t be rescinded later, or that it will be accepted as sufficient by the court.

Hypothetically, for example, the attorney may have learned confidential information from the first co-conspirator client which would be helpful in his subsequent representation of the second, but he might be precluded from using it because it would harm the first co-conspirator, or vice-versa. This is compounded in this case, in my opinion, because Donna has been at various points, both the first and the second client in the above hypothetical.

All in all, in my opinion, it’s a mess.