The Dan Markel Case: Watch Your Words About Wendi Adelson

Wendi Adelson's lawyer is considering legal action against those who malign his client online.

Wendi Adelson

Wendi Adelson

This post goes out to all the readers and posters at Websleuths. As I’ve mentioned before, Websleuths is an excellent message board where participants read about, discuss, and even attempt to solve noteworthy crimes. The comments are generally of high quality; if our comments here at Above the Law had been as good as those on Websleuths, perhaps we wouldn’t have removed our comments section.

There is, as you would expect, an active and animated discussion about the Dan Markel case over at Websleuths. Although I have not joined it, I read it regularly, and I appreciate and benefit from the information and insights of the posters.

I have become a topic of discussion over at Websleuths — see, e.g., “what is Lat?” — because of my reporting about and analysis of the Markel case. Specifically, some posters have criticized me because they disagree with my view that Wendi Adelson did not know in advance about the murder of her ex-husband Dan Markel and was not involved in planning it.

If you’ll allow me to engage in some Wendi Adelson-esque self-indulgence, let me tell you a bit about myself. First, I was a friend of Dan Markel — not a close friend, but a longstanding one, going back to working together on the Harvard Crimson in college — and we stayed in touch. We would email; I had his personal Gmail address, and he emailed me from Club Med on his honeymoon with Wendi, after I saw his New York Times wedding announcement and sent him a congratulatory note. We would exchange Facebook messages. We would talk on the phone (and I still have his cellphone number in my iPhone contacts). And we would meet in person; on one of these meetings, at a coffee shop in D.C., he introduced me to Wendi.

So I, like all of Dan’s friends and family members, want the people behind his murder to be brought to justice. I am no mere spectator or armchair detective; I have a personal connection to this case.

(Yes, I have my opinions as to who’s responsible for his murder — in addition to Luis Rivera, who has pleaded guilty — but I have been keeping them to myself, and intentionally so. Unlike Websleuths posters, I do not have the luxury of anonymity; I gave up anonymity years ago. So I have to be careful, because people know where I work and live. I can be sued for defamation — even meritless lawsuits take a financial and emotional toll — or worse.)

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Second, I am a former prosecutor, and if I have a bias in criminal cases (I try not to be biased), it’s for the government and against people suspected of crimes. I believe that people who work in law enforcement are, for the most part, good people who act in good faith (a belief that some of my Above the Law colleagues don’t share). I believe that the vast majority of criminal defendants did in fact commit the crimes they are charged with (even though, if selected as a juror, I would respect the presumption of innocence, hold the prosecution to its burden of proof, and keep an open mind; the one time I served on a criminal jury, I joined my fellow jurors in acquitting on the top charge). Prosecutors bring cases because they believe the defendants are guilty, and the prosecutors are usually right.

Third, I am not a fan of Wendi Adelson as a person. She was perfectly nice the one time I met her in person, but I know from talking to Dan that she put him through hell. I thought that the way she handled the end of their marriage — taking the kids (and many of the marital possessions) and splitting while he was out of town, leaving behind a mattress with divorce papers on top — was just abominable. And I think it’s terrible — and terribly sad — that she has changed the names of her two children with Dan to remove all traces of him from their lives. (She changed their surnames from “Markel” to “Adelson” and also removed the middle name of one child who was named in honor of one of Dan’s late relatives.)

Why do I share all of this? To show that I have not come to my view of Wendi’s innocence — as to Danny’s murder (she might be guilty of other things) — lightly or without foundation. Also, as I’ve said before, I leave open the possibility that Wendi learned after the fact about how the murder came to happen, and I express no opinion on whether relatives of hers might have been involved. (The Adelsons maintain their innocence, of course, and are innocent in the eyes of the law until proven otherwise — and note that no family member has yet been charged.)

So why do I belong to what Websleuths posters have dubbed “Team Wendi-Not Involved”? It’s not because I’m stupid or ignorant of the law (I’m a lawyer with a still-active license), because I’m biased in favor of criminal suspects (I’m an ex-prosecutor), because I like Wendi as a person (I don’t), or because I find her attractive (I don’t play for that team). It’s because of the evidence — which every good prosecutor must follow.

I could restate my defense of Wendi, but I will instead share with you comments I received recently from her lawyer, John Lauro (also a former federal prosecutor, and a very talented and experienced trial lawyer). He made these comments to me on the record, i.e., intending them to make their way to people following and discussing this case.

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(Contrary to the snarky suggestions of Websleuth posters and commenters on Jonathan Turley’s blog, I am not a member of Wendi Adelson’s defense team. But I do speak to her lawyer from time to time, sometimes on the record and sometimes not, just as I talk to prosecutor Georgia Cappleman, lawyers for the various defendants, counsel to the Adelsons and to the Markel family, and other attorneys involved in this case.)

“There is some commenting about Wendi that is highly irresponsible and reprehensible, coming from people who know nothing about the case,” Lauro told me. “Wendi is not a public figure, and it’s beyond the pale that people are coming after this young lawyer and single mom in an attempt to demonize her. We are monitoring and reviewing comments about the case to determine if any of them are actionable.”

Translation for laypersons: your Nancy Grace-style “Wendi is guilty” comments could make you subject to a defamation lawsuit. Just because you post under a pseudonym doesn’t place you beyond the reach of the law. Even though Websleuths and Jonathan Turley can’t be held liable for what their commenters post (thanks to 47 U.S. Code § 230), they can be forced by a court to turn over identifying information about posters, including email and IP addresses, if Wendi sues for defamation and a court deems the comments in question to be actionable. Lauro’s reference to Wendi not being a public figure, if accurate — one can argue over this (see my short law review article, Public Figurehood in the Digital Age) — means that a poster or commenter sued by Wendi would not get the benefit of the generous “actual malice” standard of New York Times v. Sullivan, which applies to public figures (think government officials and Beyoncé). Depending on the jurisdiction, you could be held liable for making negative and untrue comments about Wendi under a mere negligence standard — i.e., you were sloppy or careless or didn’t do enough research.

(Note: Lauro specifically told me that “none of this criticism is directed toward Professor Turley, who is very fair.” But some of the commenters on Turley’s blog, on the other hand….)

John Lauro shared with me seven points that, in his view, conclusively establish Wendi Adelson’s innocence as to Dan Markel’s murder. Please note that the points listed below come from Lauro unless noted otherwise; in other words, they are not my arguments, just my summary of his arguments.

1. As noted in my prior post, and contrary to various comments posted online, prosecutor Georgia Cappleman did not accuse Wendi Adelson of participating in the plot to murder Dan Markel.

2. Wendi received a subpoena to testify at the trial of Luis Rivera (before Rivera pleaded guilty). Under Florida law, a witness who testifies under subpoena gets automatic testimonial immunity — i.e., her testimony can’t be used against her in a future proceeding, directly or indirectly. (Forcing someone to testify about a crime and then prosecuting her for it would create an obvious problem with the Fifth Amendment right against self-incrimination.)

So as a practical matter, prosecutors never send subpoenas to potential targets or subjects of an investigation; if they later prosecute that witness, determining what’s covered and not covered by the grant of immunity is a messy and complicated endeavor. “When you get a subpoena, that’s a great thing if you’re a defense lawyer,” Lauro said.

3. Comments from Wendi have never been picked up in any Title III interception (aka a wiretap) in this case — and as followers of this case know, there has been tons of surveillance of multiple parties.

4. The only “evidence” suggesting involvement by Wendi is some testimony by confessed hitman Luis Rivera. Lauro pointed out to me that Rivera has no firsthand knowledge — he supposedly understood Wendi was involved from Sigfredo Garcia, who in turn supposedly got this from Katherine Magbanua, who in turn supposedly might have communicated with Wendi, or maybe with one of Wendi’s relatives — making Rivera’s comments “triple or quadruple hearsay at best,” as Lauro put it. (In other words, Rivera himself had no contact or interaction with Wendi — so how can he claim she was the mastermind?)

5. The government’s chief investigator said at defendant Katherine Magbanua’s bail hearing that Rivera can’t be completely trusted (given his extensive criminal history and inconsistencies in his testimony, among other things). This doesn’t make all his testimony valueless, but his specific statements must be corroborated by other evidence — and here, no other evidence corroborates Rivera’s claim of Wendi’s involvement. (As prosecutor Georgia Cappleman told me, “I do not have any evidence that Wendi ordered the hit other than Rivera’s belief.”)

6. On the day that Danny was shot, Wendi spent some eight hours with law enforcement, without a lawyer representing her — even though, as a lawyer and law professor, she was well aware of her right to counsel. She answered every question put to her, didn’t hesitate in responding, and didn’t ask for the interview to stop.

7. While with law enforcement, Wendi volunteered comments that don’t put her brother and mother, Charlie and Donna Adelson, in the best light. She talked about how Charlie joked about hiring a hitman to kill Danny, and she expressed “relief” at how her parents “sounded really surprised” when they learned that Danny had been shot. If Wendi had been working with her brother and mother on a plot to murder Dan Markel, she would not have made such statements.

“I am incensed by the spurious conjecture about Wendi, made without an ounce of proof,” Lauro said to me in closing. “These defamatory statements will not be tolerated.”

P.S. One final point, from me and not from Lauro: as I’ve written before, if Wendi had been involved in the plot to murder Danny, she wouldn’t have written and podcasted about his death. She would have shut the heck up, drawing no more attention to the crime, in the hope that everyone would somehow forget about it and move on.

FL – Dan Markel, 41, FSU law professor, Tallahassee, 18 July 2014 – #4 *Arrests* [Websleuths]
‘The Prosecution Does Not Believe That Wendi Ordered The Hit’ On Dan Markel [TaxProf Blog]
Does The Prosecution Believe (And Can It Prove) That Wendi Adelson (And Not Charlie Or Donna) Hired Katherine Magbanua And Sigfredo Garcia To Kill Dan Markel? [TaxProf Blog]
New Disclosures in Murder Of FSU Professor Dan Markel [Jonathan Turley]

Earlier: The Dan Markel Case: Slow Your Roll On Wendi Adelson


DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.