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The Dan Markel Case: Katherine Magbanua's New Trial Date

And a statement from the Markel family.

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Katherine Magbanua

Pasko was not very maligayang for my fellow Filipino-American, Katherine Magbanua. Facing first-degree murder charges for her alleged role in the plot to kill Professor Dan Markel, Katie Magbanua spent yet another Christmas in custody.

This new year will be a big one for Magbanua. She will either regain her freedom or lose it — possibly for a very, very long time.

But the resolution of her case, originally scheduled to go to trial later this month, on January 22, has been postponed yet again. It’s amazing to think that at one point it was scheduled for trial for February — of last year.

Earlier today, on a snowy (yes, snowy) morning in Tallahassee, Leon County Circuit Judge James Hankinson held a previously scheduled hearing in Magbanua’s matter. Her lawyers, Christopher DeCoste and Tara Kawass, asked for a continuance of the trial, citing the need to conduct depositions and sort through voluminous documents as part of their trial prep.

With no objection from the state, Judge Hankinson set a new trial date of October 8 for Katherine Magbanua. This means that Magbanua’s trial should take place after the trial of Sigredo Garcia, her co-defendant (and father of two kids with her), which is currently scheduled for July.

What about the possibility of trying Magbanua and Garcia together, an issue raised at the last hearing in Garcia’s case and raised again by the prosecution this morning? Assistant State Attorney Georgia Cappleman expressed interest in a joint trial, but it sounds like that won’t be happening, per the Tallahassee Democrat:

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Leon County Circuit Judge James Hankinson said he was unlikely to try both at the same time. Garcia faces the death penalty; Magbanua does not.

Cappleman said that decision [on no death penalty for Magbanua] was made by the State Attorney’s Office early on in the investigation, based on what detectives say was her role.

“Since she wasn’t the person who pulled the trigger, we didn’t feel death was an appropriate sentence for her,” Cappleman said, adding that she would like Magbanua to become a state’s witness but was not hopeful that would happen.

Kawass said there were legal issues with trying both her client and Garcia together; death penalty and regular juries are different. She is also concerned about evidentiary issues with statements made by Rivera.

In correspondence with me, Kawass’s co-counsel, Christopher DeCoste, expanded on these issues:

[Trying the cases together] is legally impossible. Sigfredo Garcia is alleged to have made statements to Luis Rivera, and later to fellow inmates, that Katie was involved. These statements are highly suspect, as each of the declarants has a motive to lie. Moreover, these statements create a Bruton issue, so they’ll have to be severed if consolidated. Furthermore, there are the logistical problems of trying a death case with a non-death case. It would require two separate juries, one regular and one death-qualified. With alternates this would mean about 30 jurors. The jury box alone can only hold about 15.

Fair enough. And holding separate trials, while delaying resolution further, is in some ways the safer course. If convicted, neither defendant can raise failure to sever as an issue on appeal (i.e., claim that they were unfairly prejudiced by a joint trial). Also, if convicted at trial in July, Sigfredo Garcia — who could face the death penalty upon conviction — might be more willing to talk to the government about who else was involved in the alleged murder plot.

In my last story about the Markel case, I expressed concern about how long it is taking to bring Dan Markel’s alleged killers to justice — concerns that the continuance in Magbanua’s case further exacerbates. Christopher DeCoste defended the delay to me:

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The wheels of justice are moving at a normal, possibly accelerated, pace. A couple of years isn’t unusual for murder prosecutions in Florida.

Take, for example, recent cases in Tallahassee before the same judge. Adam Frasch was arrested in late 2014 for the murder of his wife and went to trial early 2017. Next, the case of Henry Segura was reset for many years before first going to trial.

Of course, each case is different and brings with it different reasons for continuances. This case, for example, is significantly more complex than the average murder prosecution. A normal homicide case averages around 50 local witnesses. Here, we have approximately three times that. Furthermore, witnesses are spread out all over the state, a handful sprinkled throughout the country and a couple outside of the country.

Those are just some of the factors at issue. To learn about others, read the rest of DeCoste’s complete statement, posted at the end of this story.

DeCoste makes reasonable points. Complex homicide cases take time to prepare and try. As prosecutor Georgia Cappleman told WTXL earlier this week, “Murder cases frequently get continued…. This is an ungainly beast that we’re trying to wrangle.”

And it makes sense to give criminal defendants to get ample time to prepare their cases. This way they can’t later claim, after conviction, that they received ineffective assistance of counsel.

At the same time, one can understand why Danny’s parents, Ruth and Phil Markel, feel that an eternity has passed since their son’s murder — an eternity during which they’ve experienced unspeakable suffering.

“With this latest delay, the Markels remain in agony,” said Gibson Dunn partner Orin Snyder, counsel to the Markel family, in a statement issued to me and other journalists. “Dan, their only son, was stolen from them more than three years ago.”

“Since April 2016, they have not been allowed to see their grandsons, despite their repeated pleas. Throughout this horror, the Markels remain hopeful that they will one day see their grandsons again and that justice will be achieved.”

CONTINUED STATEMENT OF CHRISTOPHER DECOSTE, COUNSEL TO KATHERINE MAGBANUA

This case is also unique in that there are many federal agents listed. Knowing your experience as a federal prosecutor I don’t need to explain the difficulty of dealing with Touhy notices for what is supposed to be a discovery deposition — basically, a conversation on the Möbius strip with the Department of Justice.

Why does the amount of witnesses result in more time needed? Unlike federal prosecutions and cases in other states, we have the right, and the need if we want to be considered effective counsel, to depose most if not all listed witnesses. The speed with which we can complete those depositions is dependent on the availability of the witnesses and prosecutors, who on a case like this would sit in on all depositions.

Separate and apart from depositions, as [fellow defense lawyer] Saam [Zanganeh] said, the evidence is overwhelming, but clarification is needed. It’s overwhelming in quantity, not quality. Florida state cases differ from federal prosecutions in ways other than depositions. Discovery is much more complete, meaning we get things like all the reports, data and names of people they collected in the first two years of the investigation before they formed their theory of the case. Little of this will be highlighted in trial, but as her defense attorneys we must review every stitch of discovery. So, a bunch of time is being spent reviewing discovery that is neither inculpatory or exculpatory. We have approximately 8TB of data from the government and about 250 names.

Nevertheless, we’ve taken a massive bite out of this case in the last year. Katie was arrested in October 2016. We received a brunt of the discovery the day before the Arthur hearing and immediately began the process of reviewing discovery and setting depositions. We’ve muscled through about half of the data. As for depositions, the government was only able to give us a handful of weeks in 2017 and with them we’ve completed approximately 70 depositions, including most of the federal agents. Given that we have about 4TB left to review and another 70 depositions to go, we’ll be asking for a continuance when we’re before the Court on January 3, 2018.

We do this not because we’re trying to avoid trial, but rather because we must to be competently prepared. As I said when we were before the Court this past July, the defense, specifically Katie, are eager to get a jury in the box, end this nonsense, and get her back to her two young children.

Trial delayed for Dan Markel slaying suspect Magbanua [Tallahassee Democrat]

Earlier:

The Dan Markel Case: The Latest Developments

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as 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.

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