The Dan Markel Murder Case -- Defense Attorneys Dismiss It All As Fake News
Defense attorneys can teach us a lot about Trump.
When the history books look back on this glorious epoch, one suspects that the twin concepts of fake news and alternative facts will surely shame our descendants miserably. Assuming, of course, their existence living under a couple feet of rising ocean levels isn’t still a postmodern hellscape of contingent truths. They’ll muse about the bygone era and wonder: How did reality become arbitrary? What is a “Breitbart”? What happened when people failed to keep up with the Kardashians? The answers to all these questions will be to our sorrow.
But enough about the future! Today we grieve in solidarity with the victims of Sweden while the official organs of American government ask that we kindly get over our hangups and just accept the simulation they prefer. It’s how we do things around here now.
Which is not dissimilar to the role criminal defense attorneys routinely play. When you think about it, asking reasonable people to accept all sorts of ludicrous alternative theories in the spirit of creating that shadow of a doubt is a time-honored tradition. “He was just holding it for a friend!” “He didn’t make that trade for personal gain!” “The victim shot himself execution-style in the back of the head with that rifle!” “Hey, that lady’s head was severed when he got there!”
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Maybe that’s a valuable rubric for understanding modern times. Instead of dismissing the administration as bumbling or evil, we should just respect their defense attorney game. Because defense attorneys are definitely respecting the tricks and tactics of the administration.
Bringing us to today’s article in the Orlando Sun-Sentinel. The paper acquired an interview with Luis Rivera, along with other documents and recordings, and has new details in the ongoing Markel murder investigation. But what’s really interesting about this story is how artfully the attorneys defending the unindicted folks seize the cultural moment and run with it.
David Oscar Markus, Charlie Adelson’s attorney, said Friday: “Even though Charlie wasn’t involved, the prosecution has run a smear campaign against him and his family by using alternative facts created by people with quite a bit of time on their hands.”
I’m old enough to remember when “fake news” was a term applied to right-wing clickbait about Obama’s birth certificate — which is to say I’m older than 3 months — but somehow, while no one was looking, it’s been brilliantly and forcefully reappropriated as a slur against the mainstream media. Some people dismiss this script flipping, but it’s a masterwork. These folks took over the lexicon and shaped it to make their story the default “reality” set in contrast to the “fake” news. That’s just stellar work.
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Whether or not Charlie Adelson was involved in this killing isn’t the point. Kudos to Markus for reading the zeitgeist and jumping on the phrase “alternative facts” before a clever prosecutor pointed out that stringing together “alternative facts” is literally the job description of a defense attorney. “Alternative facts” should be the mantra of prosecutors (at the very least, prosectors in reasonably Blue areas of the country) for years — tagging the defense with all the baggage the jury has with the term every time an attorney asks the jury to consider “couldn’t it have happened differently?” But Markus is on it. He’s flipping that script. And his fellow defense attorneys piled on.
“The prosecution created a theory fit for a soap opera, built a case around that preposterous plot using the wholly unreliable word of a thug as mortar, and peddled it through the media without mentioning any of the massive inconsistencies,” [Katie Magbanua attorney Christopher] DeCoste said in a statement. “Before they turned Luis Rivera, a lifelong gangster, into their snitch, the threadbare circumstantial evidence wasn’t even enough to arrest Katie.”
That a pair of career criminals would drive hundreds of miles to assassinate a law professor who just happens to be involved in a dispute with the employers of the gunman’s girlfriend? What random happenstance! Yes, that does sound like a soap opera. Or at least an episode of Alfred Hitchcock Presents. And yet DeCoste contends it’s the idea that there may be a connection that is “preposterous” and “wholly unreliable.”
Garcia, the gunman with the Magbanua connection, hasn’t been cooperating with authorities, but other inmates suggest he’s shared details with them. Magbanua’s attorney goes on the offensive here as well:
“No surprise other jailbirds are coming forward. Feed one pigeon and the next day there’s 20 of them wanting to be fed,” DeCoste said. “These inmates have TV in jail, know the prosecution is desperate for evidence, are chirping back basic case facts learned from the news and hoping for a Rivera-like deal of their own to get out of their cages.”
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Attack, attack, attack. No one is credible. It’s all fake! Insert “SAD!” at the end of the quote and you see the new political playbook at work.
Where doubt is a virtue this is all to be applauded. The criminal justice system is designed to protect the accused and we do that by investing doubt with so much power. Anything that sows confusion over the facts of the case is good advocacy.
Somewhere along the line, doubt became a virtue in politics, where it was never meant to be. Years of America lapping up some talking head “debate” format show presented as “showing both sides” turned what was once a contestation of visions into a battleground of doubt and false equivalence. The compulsion to manufacture a “both sides” to every news item turned politics itself into a trial where it was once an appeal. Audiences are fact-finders instead of justices, and sowing the narrative of “I don’t trust any of them” is a win for one side. Once doubt is a virtue, you really can’t blame someone for dwelling on Bowling Green.
They’re just defending their client.
‘That’s what we went to go kill that man for’: New details emerge in FSU professor’s killing [Orlando Sun-Sentinel]
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
