GUILTY FL - FSU Law Professor Dan Markel Murdered by Hitmen 18 July 2014 - *5 Guilty* #28

[Zedzded]

If CA is granted a new trial WA would still be required as a witness. If she is arrested now, there is no immunity and she can refuse to testify which means the State would have to proceed without her. I think she is a key witness. So it is logical for them to not arrest her whilst CA appeal is in process. This does mean she may not be arrested for years as the appeal process is so slow and laborious.

Ultimately, unlike us, the State have to be disciplined and take the emotion out of it. The likes of GC and Sarah are humans and desperate for justice to be served. But they need to be clinical. The end goal is 7/7 in prison and if that means WA walks this earth as a free woman for 2-3 more years that's a sacrifice they are willing to make.

It could transpire that they arrest WA now, CA gets a new trial and is found not-guilty. WA is also found not guilty and the Sate decide not to proceed against HA because of the trial outcomes. That's 4/7. WA could also be used as a witness in her Dad's trial. So she might not even be the next arrest. HA is picked up after CA's appeal fails.

 

[yazoost]

Prosecutors only go to trial on cases they can win. A Wendi prosecution is a 50-50 at best. No reasonable prosecutor should waste their time on those odds. As Georgia told us, there are other criminals, other cases in Tallahassee. In any case,

Stay tuned, I guess.

My point is that Jack Campbell himself just wasted his, the court's, the jury's, and the PD's time prosecuting an even worse case. I suspect it's because the defendant was a poor, old, black man, and not a rich, young, white woman.

 

[Weki]

My point is that Jack Campbell himself just wasted his, the court's, the jury's, and the PD's time prosecuting an even worse case. I suspect it's because the defendant was a poor, old, black man, and not a rich, young, white woman.

I don't know anything about that case so I can't say whether he had good reason to believe he could get a conviction or not.

 

[Zedzded]

I agree with your assessment; it’s 50-50 "at best".

You can't apply an arbitrary figure like that. The circumstantial evidence that implicates WA is enormous. The issue is it's largely circumstantial and therefore more opportunity for counsel to defend. All that is needed to cement the case against WA is one little tiny text or phone. One little tiny piece of physical evidence and she's done. That's not 50/50. If the State found a call log that showed WA phoned KM around the time she went down Trescott she's toast.

 

[Going Rogue]

You can't apply an arbitrary figure like that. The circumstantial evidence that implicates WA is enormous. The issue is it's largely circumstantial and therefore more opportunity for counsel to defend. All that is needed to cement the case against WA is one little tiny text or phone. One little tiny piece of physical evidence and she's done. That's not 50/50. If the State found a call log that showed WA phoned KM around the time she went down Trescott she's toast.

You snipped a portion of my comment, I made it clear that I am basing my analysis on information that has been made public. Of course if new evidence is uncovered like a call from Wendi to Katie the morning of the murder it’s no longer 50/50. Same thing if they uncover a WhatsApp message from Charlie to Donna that morning saying ~ “don’t worry, Wendi will never know we were behind this”.

We can only evaluate the case based on the evidence that actually exists, not hypothetical evidence we wish existed. Based on the public record, the State still can’t bridge the gap between “she benefited and acted suspiciously” and “she knowingly joined the conspiracy.” Until prosecutors can close that gap with something admissible and trial‑ready, I stand by my statement that a conviction appears to be 50 / 50 ‘at best’ (with a strong emphasis on ‘at best’) and it would be a VERY risky case for the prosecution.

 

[Zedzded]

A 50/50 case at best would suggest a lack of evidence, and imply the State had to do a lot more, obtaining much more evidence to have an indictable case. As i said, they only need one little tiny bit of physical evidence to put the final piece of the puzzle in place. 1 text to a co-conspirator, evidence of moving to Miami prior to the murder. As I said, they only need one small piece of physical evidence to put the final piece of the puzzle in place ; a single text to a co-conspirator, or proof of travel to Miami before the murder. On its own, something like that might seem minor or inconsequential. But when it’s connected to the circumstantial evidence, the dots all join up.

Not having enough evidence to indict someone does not make the case weak or 50/50. It means something more is needed to satisfy the burden of proof, beyond a reasonable doubt.

 

[Going Rogue]

A 50/50 case at best would suggest a lack of evidence, and imply the State had to do a lot more, obtaining much more evidence to have an indictable case. As i said, they only need one little tiny bit of physical evidence to put the final piece of the puzzle in place. 1 text to a co-conspirator, evidence of moving to Miami prior to the murder. As I said, they only need one small piece of physical evidence to put the final piece of the puzzle in place ; a single text to a co-conspirator, or proof of travel to Miami before the murder. On its own, something like that might seem minor or inconsequential. But when it’s connected to the circumstantial evidence, the dots all join up.

Not having enough evidence to indict someone does not make the case weak or 50/50. It means something more is needed to satisfy the burden of proof, beyond a reasonable doubt.

There is a lack of evidence that Wendi joined the conspiracy, and that is exactly why I say the case is 50/50 'at best'. Again, you are injecting evidence that just isn’t there. In a murder conspiracy trial, a 'text to a co-conspirator' isn't just a 'final puzzle piece' - it’s more like the keystone. I already agreed that if they find what you call a 'tiny bit of physical evidence' that ties her to the conspiracy, it’s a different story. But therein lies the problem… they don’t have such evidence.

In a courtroom, 'joining the dots' without direct proof is called speculation. By admitting the State needs one more piece of physical evidence (like a text), you’re effectively agreeing that the current case is incomplete. A case that relies on a jury 'filling in the blanks' regarding intent is exactly what a 50/50 case looks like. The State cannot just hope the jury connects the dots, they need to show the connection. If they can’t prove the connection, the case is subject to too much reasonable doubt.

 

[Weki]

You snipped a portion of my comment, I made it clear that I am basing my analysis on information that has been made public. Of course if new evidence is uncovered like a call from Wendi to Katie the morning of the murder it’s no longer 50/50. Same thing if they uncover a WhatsApp message from Charlie to Donna that morning saying ~ “don’t worry, Wendi will never know we were behind this”.

We can only evaluate the case based on the evidence that actually exists, not hypothetical evidence we wish existed. Based on the public record, the State still can’t bridge the gap between “she benefited and acted suspiciously” and “she knowingly joined the conspiracy.” Until prosecutors can close that gap with something admissible and trial‑ready, I stand by my statement that a conviction appears to be 50 / 50 ‘at best’ (with a strong emphasis on ‘at best’) and it would be a VERY risky case for the prosecution.

But what will we talk about (and podcast about) if we can't talk about hypothetical evidence we wish existed?

Once his current appeal gets denied, Charlie's next big fight will be over Rashbaum's conflict of interest. I bring that up to say that Charlie is not going to turn on Wendi anytime soon (if ever). Maaaaaybe once Charlie exhaustes his appeals some years down the road, we may see him trying to cut a deal by giving Wendi up but that's assuming he has anything to give beyond just his say so. Charlie testifying that Wendi was in on the plan from the get go is still he said, she said. There's a heck of a lot more evidence of Charlie's involvement than Wendi's. That would be an interesting scenario though. I'd love to see that drama play out.

 

[opt]

As long as we are imagining possible evidence, I wonder whether the boys have picked up any information which would prove that Wendi knew in advance. I can imagine her letting something slip in an inebriated moment.

Yet I can't imagine that the boys would reveal that information to prosecutors, let alone testify to it under oath.

 

[Going Rogue]

But what will we talk about (and podcast about) if we can't talk about hypothetical evidence we wish existed?

Once his current appeal gets denied, Charlie's next big fight will be over Rashbaum's conflict of interest. I bring that up to say that Charlie is not going to turn on Wendi anytime soon (if ever). Maaaaaybe once Charlie exhaustes his appeals some years down the road, we may see him trying to cut a deal by giving Wendi up but that's assuming he has anything to give beyond just his say so. Charlie testifying that Wendi was in on the plan from the get go is still he said, she said. There's a heck of a lot more evidence of Charlie's involvement than Wendi's. That would be an interesting scenario though. I'd love to see that drama play out.

Anything is possible… but I don’t see Charlie ever flipping on Wendi. According to everyone’s favorite podcaster, Charlie’s conflict of interest appeal is guaranteed to be granted. Although, I don’t think it’s a guarantee, I can see him winning the conflicted counsel appeal. The argument that Rashbaum ‘may’ have been protecting the best interests of his former clients (Donna and Harvey) at the expense of Charlies defense is a real issue. Mentour Lawyer put out a great video last year making the point that the state can argue it was an ‘invited error’ by the defense. I would be much more confident in that argument had Charlie signed a clear "knowing, and intelligent" waiver. There are some real technical nuances around the conflicted counsel argument and think good arguments can be made for both sides.

 

[Weki]

Anything is possible… but I don’t see Charlie ever flipping on Wendi. According to everyone’s favorite podcaster, Charlie’s conflict of interest appeal is guaranteed to be granted. Although, I don’t think it’s a guarantee, I can see him winning the conflicted counsel appeal. The argument that Rashbaum ‘may’ have been protecting the best interests of his former clients (Donna and Harvey) at the expense of Charlies defense is a real issue. Mentour Lawyer put out a great video last year making the point that the state can argue it was an ‘invited error’ by the defense. I would be much more confident in that argument had Charlie signed a clear "knowing, and intelligent" waiver. There are some real technical nuances around the conflicted counsel argument and think good arguments can be made for both sides.

IANAL but it seems to me the best counter argument against the conflict of interest appeal is that Charlie, Donna and Harvey were conducting a joint defense at the time that Rashbaum was defending Charlie. I believe there are pleadings to support this argument, but don't quote me on that. But Charlie's tesitmony also suggests a joint defense. There's evidence of Donna saying what Charlie testified to was true and that's what happened.

Even though there is no written waiver, I believe Rashbaum would be called to testify at such a hearing and would attest that Charlie waived it.

 

[Going Rogue]

IANAL but it seems to me the best counter argument against the conflict of interest appeal is that Charlie, Donna and Harvey were conducting a joint defense at the time that Rashbaum was defending Charlie. I believe there are pleadings to support this argument, but don't quote me on that. But Charlie's tesitmony also suggests a joint defense. There's evidence of Donna saying what Charlie testified to was true and that's what happened.

Even though there is no written waiver, I believe Rashbaum would be called to testify at such a hearing and would attest that Charlie waived it.

That is a fair point regarding the 'Joint Defense,' but legally, that might actually hurt the State's argument rather than help it. I'll play devil’s advocate – if the state makes that argument, Ufferman can argue that a joint strategy was formed because Rashbaum was prioritizing the 'Adelson Family' over Charlie individually. If an independent lawyer would have advised Charlie to flip on Donna, but Rashbaum couldn't give that advice because he was protecting Donna (per the joint defense), that is the textbook definition of an 'actual conflict' affecting performance. The Joint Defense Agreement essentially proves the entangled loyalties.

 

[Weki]

That is a fair point regarding the 'Joint Defense,' but legally, that might actually hurt the State's argument rather than help it. I'll play devil’s advocate – if the state makes that argument, Ufferman can argue that a joint strategy was formed because Rashbaum was prioritizing the 'Adelson Family' over Charlie individually. If an independent lawyer would have advised Charlie to flip on Donna, but Rashbaum couldn't give that advice because he was protecting Donna (per the joint defense), that is the textbook definition of an 'actual conflict' affecting performance. The Joint Defense Agreement essentially proves the entangled loyalties.

Since I've started watching trials, I've been fascinated with how handicapped defense attorneys are when it comes to protecting the client...from the client. In the end, a defense attorney has to do what the client wants even if the client is committing self-immolation. That's what happened in this case IMO. Charlie is enmeshed with Donna. That was his only motive for committing this crime. There was very little chance at that time he would elect to separate from Mommy Dearest and have his own lawyer. I doubt it even occured to him that there was a conflict of interest. And I'm confident that's what he communicated to Rashbaum.

But I have always felt that Rashbaum defending Charlie was ann obvious conflict of interest and if Charlie gets a new trial over it I would have to say that's fair.

 

[Going Rogue]

Since I've started watching trials, I've been fascinated with how handicapped defense attorneys are when it comes to protecting the client...from the client. In the end, a defense attorney has to do what the client wants even if the client is committing self-immolation. That's what happened in this case IMO. Charlie is enmeshed with Donna. That was his only motive for committing this crime. There was very little chance at that time he would elect to separate from Mommy Dearest and have his own lawyer. I doubt it even occured to him that there was a conflict of interest. And I'm confident that's what he communicated to Rashbaum.

But I have always felt that Rashbaum defending Charlie was ann obvious conflict of interest and if Charlie gets a new trial over it I would have to say that's fair.

I agree with your conclusion – if he gets a new trial, it’s 'fair' not because he is innocent, but because the process has to be clean. As critical I have been in the past of Carl S, I give him credit for pointing out the issues with Rashbaum’s representation of Charlie and for assigning blame to both Rashbaum and the court. Charlie was so enmeshed with Donna, he was incapable of seeing the conflict on his own and ironically that may benefit him because he may get a new trial. That is why Rashbaum (as the professional) or the Judge should have forced a 'conflict waiver' hearing to put it on the record. Since they didn't, the record looks less like a 'strategy choice' by Charlie and more like a failure of the system to protect a defendant from his own bad judgment.

 

[opt]

Doesn't Charlie have to make a credible argument that the outcome would have been different? His case looks open and shut.