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

[Marysmith]

Possibility #5: regarding Wendi claiming that her brother joked about hiring a hit man. She may have said this because, if Katie were to testify against Charlie, he could claim that he may have said those words, but he didn’t mean them. It was just a joke. Remember how Wendi kept repeating that her brother made bad jokes when she testified at trial #1. To be guilty of a crime, the perpetrator must have committed the bad act, but also had the intent to commit the crime, or “Mens rea”. This leaves Charlie open to say, “yes, I may have said those words, but it was just a joke. I never intended to have Katie procure a hitman to kill Danny”.

This really makes sense to me!!

 

[KidonGadol]

Luis got 19.

I take it this is an answer to GordonX and the "first degree murder in FL gets you LWOP" statement.
The truth is that First degree murder (FL) is committed when a person commits either Premeditated Murder or Felony Murder. Sentence can be Either LWOP or the death sentence. Felony murder has a laundry list of potential felonies associated with it see https://www.richardhornsby.com/crimes/homicide/first-
degree-murder.html
Variations in sentences for first degree murder -
Rivera (but did a plea deal and turned witness) 19 years, 7 years in addition to an unrelated federal sentence. It's hard to tell if at any stage he was charged with first degree murder.
G. Sievers - paid for Hit man murder of his wife -in FL . Death
Jimmy Rogers. Did the murder LWOP.
Jimmy's assistant in the murder - state witness - about twenty yrs.
Chiropractor Adam Frasch murdered his wife Samira. FL case 2017. Sentence:
Life (this may be life with parole - media documents are not precise ). A Frasch previous criminal history of Medicare fraud. I can't readily tell if this was a first degree murder case.

 

[vislaw]

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Really want to thank Gardenista for posting Mentour Lawyer's channel feed of the hearing yesterday.

The prosecution got a huge ruling in its favor when the court ruled that all the wiretapped calls surrounding "the bump" may be introduced into evidence. Some of those calls are featured on the OVER MY DEAD BODY PODCAST and they are devastating, in my opinion.

I've also been very interested in what the court would do regarding admissibility of the transcript of the enhanced recording from the Dolce Vita restaurant. Defense Counsel Tara Kawass has done some very good lawyering opposing the prosecution's desire to play a version of the recording with the transcript underneath as captions. I think the defense is on pretty sound ground in this regard. The audio expert, Keith McElveen, will only testify about how he enhanced the recording and won't express any 0pinions about what the words are. Thus, the prosecution got a court reporter to listen to the recording and produce a transcript. This certainly makes sense given that court reporters are trained to listen and transcribe accurately. However, the jury is the true arbiter of the evidence and court reporters are not perfect in their work. Kawass knows the recording is going to come into evidence, but she also knows it is a slog trying to listen to it and make out much of the conversation. Having a transcript appear as a closed caption would be huge for the prosecution because it not only provides the words, it also indicates the portions that are unintelligible. If you don't have that guidance as a listener, it is really tough as your brain is straining to interpret the unintelligible passages throughout the recording. I found a very good law review article on the subject that is worth looking at if you are interested in the law applicable to this issue.

The more I have been thinking about this matter, the more I feel not having the transcript won't be that big of a loss for the prosecution if the judge rules for the defense. The prosecution is going to be able to get the enhanced audio into evidence and they only need to pull a couple gems from the recording, such as, "If they had any evidence, we would have already gone to the airport." They can isolate those phrases and mark them as individual exhibits. That should allow Ms. Cappleman to play those excerpts during closing while highlighting what they say for the jury. Since closings are not evidence, the prosecution is allowed to argue what they believe the evidence is and, if done right, it will be every bit as effective as though the transcript had been introduced into evidence.

 

[Niner]

Just so I have my correct - the next hearing for KM is the final pretrial conference hearing on 5/13/22 - right? And trial still starts on 5/16/22?

 

[dotr]

Just so I have my correct - the next hearing for KM is the final pretrial conference hearing on 5/13/22 - right? And trial still starts on 5/16/22?

'Leon County judge approves several motions before Magbanua's trial (wtxl.com)
May 04, 2022 rbbm.
''TALLAHASSEE, Fla. (WTXL) — A Leon County judge approved multiple motions for the upcoming second trial of Katherine Magbanua, who is accused of helping kill Florida State University law professor Dan Markel.

Judge Robert Wheeler gave state prosecutors the go ahead to play 35 wire tapped calls in court.

A big concern for the defense? How Wendi Adelson's state granted immunity would impact their ability to question Markel's ex wife.

There's one more court hearing before Magbanua's second trial starts.

It's set for May 13.
Jury selection begins May 16.''

 

[TTF14]

'Leon County judge approves several motions before Magbanua's trial (wtxl.com)

I was just coming here to post this.

Specifically, any thoughts/expertise about this sentence?

A big concern for the defense? How Wendi Adelson's state granted immunity would impact their ability to question Markel's ex wife.

 

[dotr]

Refresher.. rbbm.
Magbanua v. State, 281 So. 3d 523 | Casetext Search + Citator
No. 1D19-1875
05-31-2019

''Katherine Magbanua is being tried for the murder of Daniel Markel. Magbanua seeks a writ of certiorari to quash an order prohibiting her from deposing Wendi J. Adelson, Markel's ex-wife and a material witness. Magbanua contends that the order departs from the essential requirements of the law because Adelson did not provide good cause to prohibit her deposition. She asserts that Adelson's blanket invocation of her Fifth Amendment privilege and claim that requiring her to appear for a deposition would embarrass, harass, or inconvenience her did not support issuance of a protective order. Magbanua argues that her inability to depose Adelson significantly impairs her ability to prepare a proper defense. Because Magbanua has not demonstrated material injury that cannot be corrected on direct appeal, we are constrained to dismiss the petition for lack of jurisdiction.''

''Adelson moved for a protective order four weeks before the scheduled trial date, stating that she intended to assert her Fifth Amendment privilege in response "to any substantive questions" asked during the deposition. Adelson admitted that she would testify at trial if subpoenaed by the State because she would be granted immunity for her testimony. She argued that good cause existed for issuing the protective order because requiring her to appear at a deposition would unnecessarily "inconvenience, embarrass, and harass" her.

Magbanua opposed the motion for protective order and moved to compel Adelson's appearance at the deposition or, in the alternative, to exclude Adelson's testimony at trial. Magbanua argued that Adelson did not show good cause to prevent the deposition. As a material witness for the State, Adelson could not assert a blanket Fifth Amendment privilege and avoid being deposed. Instead, Magbanua argued that Adelson should be compelled to appear and could then invoke her privilege on a question-by-question basis.

The trial court granted the protective order, ruling only that requiring Adelson to assert her privilege as to individual questions would "serve no useful purpose." The order did not limit the scope of the deposition, but rather prohibited the deposition altogether. Adelson's claims of inconvenience, embarrassment, or harassment were not addressed. While the court denied Magbanua's motion to compel and motion to exclude Adelson's trial testimony, it stated the issue could be reconsidered at trial. Magbanua seeks certiorari review of the orders.''

 

[vislaw]

I was just coming here to post this.

Specifically, any thoughts/expertise about this sentence?

A big concern for the defense? How Wendi Adelson's state granted immunity would impact their ability to question Markel's ex wife.

The problem the defense faces stems from the fact that only the State may grant immunity (which they did for Wendi at the last trial). That immunity provided that anything she said could not be used against her. Thus, she could not refuse to testify using the 5th Amendment right to not incriminate herself. This permitted the State to ask her the questions they wished and she had to answer and the defense was permitted to cross examine her within the scope of whatever she said during direct testimony. NOW, however, the defense has listed Wendi as a witness and they want to call her and question her. Unless the prosecution grants new immunity, Wendi could (and almost certainly would) refuse to answer by pleading the 5th. The judge is not going to let her take the 5th in front of the jury so it would likely result in the defense NOT being able to call her. The defense (and the prosecution) COULD play the video testimony from the first trial, but the defense are itching to ask her new questions and likely will not be permitted to do so unless the State calls her first under a new grant of immunity.

I didn't watch the discussion on this issue, so I'm not certain what the judge's ruling or comments may be. My guess would be that the defense will argue they should be able to question Wendi on areas that are limited to her original testimony under immunity. I don't see how that would fly, personally, and I see this as likely a big obstacle that will make calling Wendi impossible unless the prosecution elects to put her on the stand themselves with new immunity.

 

[GordonX]

does anyone know if KM's retrial will be on Court TV, Law & Crime Network, YouTube, or elsewhere?

 

[vislaw]

does anyone know if KM's retrial will be on Court TV, Law & Crime Network, YouTube, or elsewhere?

My understanding is the Tallahassee Democrat is going to stream it so I'm confident the stream will be available via CourtTV and other sources.

 

[TTF14]

The problem the defense faces stems from the fact that only the State may grant immunity (which they did for Wendi at the last trial). That immunity provided that anything she said could not be used against her. Thus, she could not refuse to testify using the 5th Amendment right to not incriminate herself. This permitted the State to ask her the questions they wished and she had to answer and the defense was permitted to cross examine her within the scope of whatever she said during direct testimony. NOW, however, the defense has listed Wendi as a witness and they want to call her and question her. Unless the prosecution grants new immunity, Wendi could (and almost certainly would) refuse to answer by pleading the 5th. The judge is not going to let her take the 5th in front of the jury so it would likely result in the defense NOT being able to call her. The defense (and the prosecution) COULD play the video testimony from the first trial, but the defense are itching to ask her new questions and likely will not be permitted to do so unless the State calls her first under a new grant of immunity.

I didn't watch the discussion on this issue, so I'm not certain what the judge's ruling or comments may be. My guess would be that the defense will argue they should be able to question Wendi on areas that are limited to her original testimony under immunity. I don't see how that would fly, personally, and I see this as likely a big obstacle that will make calling Wendi impossible unless the prosecution elects to put her on the stand themselves with new immunity.

Thank you so much!!! Exactly the type of explanation I was looking for.

 

[GordonX]

My understanding is the Tallahassee Democrat is going to stream it so I'm confident the stream will be available via CourtTV and other sources.

Johnny Depp?

 

[AlferdPacker]

TV feed is probably Depp, but Law & Crime streams 3-5 trials at a time on Youtube.

 

[KidonGadol]

The problem the defense faces stems from the fact that only the State may grant immunity (which they did for Wendi at the last trial). That immunity provided that anything she said could not be used against her. Thus, she could not refuse to testify using the 5th Amendment right to not incriminate herself. This permitted the State to ask her the questions they wished and she had to answer and the defense was permitted to cross examine her within the scope of whatever she said during direct testimony. NOW, however, the defense has listed Wendi as a witness and they want to call her and question her. Unless the prosecution grants new immunity, Wendi could (and almost certainly would) refuse to answer by pleading the 5th. The judge is not going to let her take the 5th in front of the jury so it would likely result in the defense NOT being able to call her. The defense (and the prosecution) COULD play the video testimony from the first trial, but the defense are itching to ask her new questions and likely will not be permitted to do so unless the State calls her first under a new grant of immunity.

I didn't watch the discussion on this issue, so I'm not certain what the judge's ruling or comments may be. My guess would be that the defense will argue they should be able to question Wendi on areas that are limited to her original testimony under immunity. I don't see how that would fly, personally, and I see this as likely a big obstacle that will make calling Wendi impossible unless the prosecution elects to put her on the stand themselves with new immunity.

.

There are areas that relate to getting KM convicted and from there to CJA which Cappleman needs to delve into. She can't delve unless she gives Wendi immunity. However Wendi has already lied and lied to the police , for instance setting J la Casse to take a fall , and once on the stand she lied on how close she got to the scene of the murder...
Does encouraging more of this serve any purpose for the conviction of KM ?


Areas:

1. How did the killer team seem know Dan's routine so well ?

2. Why does Rivera say that KM told SG that Dan was going out of town on the Saturday and schedule the murder before that ? How did KM get that information ?

Truthful answers to these would make CJA's defense at trial pretty difficult (However they'd have to be repeated at CJA's trial as he is not on trial as a co defendant -so Wendi could do a "June Umchinda " later on and start trying to refute matters of record ) . Cappleman risks giving Wendi a free pass under use indemnity for a pocket full of mumbles that won't help convict CJA and might not help in the conviction of KM.

 

[GordonX]

5/5/2022 ORDER DENYING ORDER DENYING STATES MOTION TO USES DEMONSTRATIVE AID

 

[vislaw]

5/5/2022 ORDER DENYING ORDER DENYING STATES MOTION TO USES DEMONSTRATIVE AID

Thanks for this. As I noted in my previous comment I suspected the court would deny the use of a closed caption transcript while the Dolce Vita video plays. I don't believe the inability to use the demonstrative transcript is a major problem for the prosecution, though. Ms. Cappleman should be able to isolate and play back excerpts that are clearly audible and question witnesses regarding those excerpts.

It also will be interesting to see whether KM takes the stand again. If she does, it will permit Cappleman to play excerpts during her cross examination. For instance:

MS. CAPPLEMAN: "Ms. Magbanua, I want you to listen to this excerpt" (Plays Charlie saying "If they had any evidence, we would have already gone to the airport."

Q. You can understand that can't you? You can hear Mr. Adelson saying "If they had any evidence, we would have already gone to the airport," right? Do you remember Mr. Adelson saying that to you?

****

This type of cross examination can be devastating. The prosecutor will play an excerpt and then recite to the witness what the excerpt says and ask the witness whether she hears the same. With clearly intelligible portions (like the airport comment) the witness looks very bad if she claims she can't understand it. Moreover, this approach highlights the excerpt in question and the prosecutor can play it over and over so that everyone on the jury gets it.

If KM takes the stand she can be asked what did you understand Mr. Adelson meant by that statement?" She will likely say "I have no idea" but she's already on record from the last trial testifying that based on the evidence presented at trial, she personally believes Charlie is guilty now.

My guess is that KM will NOT testify again, but she has given the prosecution a lot to work with if they've done their work since the original trial.

 

[rgrene]

Is there anybody on the planet other than Katie's apparently low IQ legal team, think that enhancing the audio from Dulce Vita would exonerate her. Or were they just staling/delaying on at the orders of the CA"s most ethical ,smartest lawyers in the world , you know, the highly esteemed guy and gal from Harvard? I'm thinking there is a 95% chance she gets convicted. Then I'm betting that they get a plea deal (that takes the death sentence off the table) with Charlie that includes Donna, and maybe Wendy. Something like life with parole possible after 35 years plus for CA(80 years old then) and 5 years for the others. MOO

 

[BlueSky12]

Unless the prosecution grants new immunity, Wendi could (and almost certainly would) refuse to answer by pleading the 5th. The judge is not going to let her take the 5th in front of the jury so it would likely result in the defense NOT being able to call her.

Why would the Judge not allow Wendi to take the 5th?

 

[AlferdPacker]

Is there anybody on the planet other than Katie's apparently low IQ legal team, think that enhancing the audio from Dulce Vita would exonerate her. Or were they just staling/delaying on at the orders of the CA"s most ethical ,smartest lawyers in the world , you know, the highly esteemed guy and gal from Harvard? I'm thinking there is a 95% chance she gets convicted. Then I'm betting that they get a plea deal (that takes the death sentence off the table) with Charlie that includes Donna, and maybe Wendy. Something like life with parole possible after 35 years plus for CA(80 years old then) and 5 years for the others. MOO

5 years for first-degree murder?

 

[vislaw]

Why would the Judge not allow Wendi to take the 5th?

If the prosecution grants immunity she can’t take the fifth. If no immunity is granted she can take the 5th but if the judge knows beforehand that she will take the 5th (such as in this case) he won’t let her do so in front of the jury because it is considered prejudicial. Many jurors will think the witness must be guilty if he/she pleads the 5th.