Crime

The Dan Markel Case: Trial Delayed, Yet Again

And will Wendi Adelson be deposed?

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Katherine Magbanua (Broward County Sheriff’s Office)

Yesterday was June 3, 2019. So that means the trial for the murder of Professor Dan Markel is now underway, right?

Of course not. Even though almost five long years have passed since the Florida State University law professor’s brutal killing, the trial of defendants Sigfredo Garcia and Katherine Magbanua has not yet started — and the numerous delays and postponements have made me feel as if it will never start. I’ll believe the trial has begun when lawyers deliver opening statements.

What’s the latest holdup? In late May, prosecutors discovered new data on a cellphone owned by Katherine Magbanua — including some potentially relevant information, as well as some information also subject to attorney-client privilege. So Judge James Hankinson ordered a review of the cellphone data by the Florida Department of Law Enforcement, in the presence of a state prosecutor (but not one from the Tallahassee office involved in the Markel case), with any legal issues to be resolved by a judge from another circuit.

What happens next? A case management conference will take place on June 18. The ruling on the cellphone data came down on May 23, so Garcia’s and Magbanua’s lawyers, who had been pushing for more time to review the evidence and prepare for trial (because the years they’ve already had haven’t been enough), effectively got more than three extra weeks of prep time. And it’s not as if the trial will start the day after the case management conference, so the amount of additional time they’ll get could end up being a month or more.

In the meantime, the defense lawyers have been seeking still more discovery — specifically, a deposition of Wendi Adelson, the ex-wife of Dan Markel. Law enforcement officials suspect that members of Wendi’s family, but not Wendi herself, were behind the plot to murder Markel. The prosecution listed Adelson as a witness, mainly to provide background information and explain some of the relationships in the case. Because Florida has a (rather unique) procedure allowing for pretrial depositions in criminal cases, defense counsel sought to depose Adelson.

But Adelson’s lawyers sought a protective order to prevent her deposition, essentially based on a blanket assertion of her Fifth Amendment privilege against self-incrimination. Judge Hankinson granted the order, which Magbanua appealed.

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Late last week, a divided panel of the First District Court of Appeal rejected Magbanua’s request. The three judges all agreed that Judge Hankinson got the Fifth Amendment analysis wrong — the privilege must be asserted on a question-by-question basis, not in blanket fashion — but the majority dismissed Magbanua’s appeal on jurisdictional grounds, reasoning that any injury to Magbanua could be addressed on direct appeal.

In a footnote, however, the majority made this pointed observation: “Of course, nothing prevents the trial court from reconsidering [the protective] order.” And Judge Susan Kelsey, in her dissent, underscored it even more, noting that “the trial court has the continuing authority to [allow a deposition of Wendi Adelson], regardless of the disposition here.”

Why might that be a good idea? Judge Kelsey explains:

[T]he trial court could then follow precedent requiring Adelson to appear at deposition and assert [her Fifth Amendment] privilege on a question-by-question basis, with the court determining which unanswered questions she must answer. Doing so would eliminate this issue as a potential new-trial argument, potentially saving years of time and untold dollars in public and private resources. Looking at the issue from the other end of the process, the deprivation of pretrial discovery has resulted in the granting of new trials.

For Dan Markel’s family and friends, the years of waiting for justice have been a nightmare. As Orin Snyder, counsel to the Markel family, said in a statement after the latest trial delay, “In the nearly five years since Dan was brutally assassinated, the Markels have endured unfathomable grief and loss. They continue to suffer, some of them in declining health, with each passing day. Justice delayed will continue to be justice denied for the Markel family and all who knew and loved Dan.”

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But you know what would also be a nightmare? For Garcia and Magbanua to get convicted at trial, appeal their convictions, and obtain new trials, simply because they couldn’t get a deposition of Wendi Adelson — who isn’t even that crucial a witness, since much of the information the prosecution intends to elicit from her could be obtained in other ways.

So just give the baby the proverbial bottle. Let the defense attorneys depose Wendi Adelson, so they can’t complain about it later after their clients get convicted. Given the amount of time, effort, and resources poured into this case, the idea of a do-over over something this insignificant turns the stomach.[1]

Today is June 4. The case management conference, on June 18, is still two weeks away. If Judge Hankinson were to rule this week in favor of a Wendi Adelson deposition, the defense could get a full week to prepare, the deposition could take place next week, and it would be over and done with before the June 18 conference. And a potential appellate issue (even if not a great one) would be taken off the table entirely, rendering any convictions of Garcia and Magbanua that much more secure. This explains why all three judges of the First District Court of Appeal went out of their way in their opinions to remind Judge Hankinson that he still has the power to order a depo — they don’t want to have to deal with this issue later.

So, Judge Hankinson, please take the appellate court’s hint. When it comes to ordering a Wendi Adelson deposition, I have three words of advice for Your Honor: just do it.

[1] Yes, allowing a deposition of Wendi Adelson could give rise to a whole host of other issues, such as the proper scope of the deposition and the applicability of the Fifth Amendment privilege to specific questions. But complaining about individual rulings related to the conduct of the deposition is a much weaker appellate issue than complaining about never getting a deposition at all.

And yes, I admit that my background as a former appellate attorney in the U.S. attorney’s office might be coloring my analysis — I want to make convictions as reversal-proof as possible — but I do believe my analysis is correct.

Appeals court rules against woman charged in Dan Markel murder [Tallahassee Democrat]
Magbanua v. State [Florida First District Court of Appeal]
Cellphone data forces delay in Markel suspects’ murder trial [Tallahassee Democrat]

DBL square headshotDavid Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, 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@laterallink.com.

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