The Dan Markel Case: Justice Delayed, Again

And another interesting development: is Wendi Adelson now a suspect?

Wendi Adelson, testifying at the 2019 trial of Katherine Magbanua, which ended with a hung jury. (Photo taken as a screencap from trial footage.)

It’s hard to believe that in a few months, eight long years will have passed since the horrific murder of Dan Markel, a renowned law professor. The theory of law enforcement is that after Markel’s bitter divorce from fellow law professor Wendi Adelson, which involved a contentious child-custody battle, the Adelson family hired two hit men to kill Markel.

Those two hit men, Sigfredo Garcia and Luis Rivera, have been convicted for Markel’s murder, and they’re now serving lengthy prison sentences. But the Adelsons have never been charged with anything, and Katherine Magbanua, who allegedly connected the hit men with the Adelsons, also remains unconvicted. In 2019, Magbanua was tried alongside Garcia; he was convicted, while she secured a mistrial.

So almost eight years later, the quest to bring Dan Markel’s killers to justice—all of the alleged killers, not just the two hit men—remains far from complete. Here’s the latest.

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1. The retrial of Katherine Magbanua has been postponed to May (at the earliest).

Katie Magbanua’s retrial, scheduled to start on February 14, just got postponed. On Sunday, her lawyers and the prosecution filed a joint motion for a continuance, which Judge Robert Wheeler granted after holding a brief hearing on Tuesday. He will set a new trial date by separate order, after reviewing his schedule and the schedules of counsel, but the retrial would not start before May.

Why the continuance? An audio-forensics expert hired by the government, a former CIA operative named James Keith McElveen, is still working on enhancing a key recording, an importance piece of evidence in the case. McElveen needs approximately a month to complete this work, then the lawyers will need another month to engage in discovery related to the recording, including deposing McElveen. That takes us to April—when Magbanua’s lawyers, Tara Kawass and Christopher DeCoste, have another trial—which is why May is now the earliest possible date for the Magbanua retrial.

The audio in question is the so-called “Dolce Vita recording.” As those of you who have followed the case might recall, in 2016 the FBI secretly recorded a conversation between Magbanua and Charlie Adelson, her ex-boyfriend and alleged co-conspirator, at the Dolce Vita restaurant in Miami. In the conversation, Magbanua and Adelson discuss an incident in which an undercover agent approached Adelson’s mother, Donna Adelson, with information about Markel’s shooting, to see how she might react. That interaction precipitated a series of telephone and in-person conversations between the alleged co-conspirators—Charlie Adelson, Donna Adelson, and Katherine Magbanua—including the Dolce Vita conversation.

Much of the original Dolce Vita recording was inaudible, and as a result, less than a minute of it was used at Magbanua’s original trial. But McElveen hopes to render more of the recording usable through enhancement, and both the government and the defense claim that if the audio can be salvaged, it will help their respective cases—which is why they both support a continuance.

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I watched the hearing on the continuance motion—which you can access here, starting around the six-minute mark—and I was impressed by Judge Wheeler. He seemed to be on top of the case, he was very familiar with the record and all the scheduling details, and he held the parties’ feet to the fire on the continuance, probing into why McElveen’s work wasn’t already completed. But in the end, after complaining that the juror summonses had already gone out and the delay was “unreasonable,” he granted the continuance: “I don’t have any choice."

2. There was an intriguing new mention of Wendi Adelson in the pretrial briefing.

In late January, in the briefing for motions in limine for Magbanua’s retrial—i.e., motions about what evidence to exclude from the trial—this interesting new nugget surfaced (first flagged by @justice4danm on Twitter):

Justice for Dan @justice4danm

Prosecutors publicly named Wendi Adelson as a co-conspirator for the first time in Dan Markel’s murder in papers filed before the Feb 14 retrial of Katie Magbanua. This trial will not be the last.

Up to this point, the prosecution has not explicitly described Wendi Adelson, Dan Markel’s ex-wife at the time of his murder, as a co-conspirator. One theory is that Wendi, although a “beneficiary” of the murder commissioned by her brother Charlie and mother Donna, did not know in advance of the plot and did not participate in it.

Did this reference to Wendi as a “co-conspirator” mean that the government had changed its view of Wendi or obtained new evidence suggesting her involvement in the murder plot? Might the government (finally) move to arrest and prosecute Wendi or other Adelsons?

I reached out to the lead prosecutor, Georgia Cappleman, who provided this explanation:

The defense has subpoenaed the Adelsons (including Wendi) for trial. Assuming this is not a publicity stunt and they actually plan to call these witnesses, they will need to demonstrate that the witnesses will answer questions and not simply invoke the Fifth Amendment, which would be improper and inadmissible. The State has requested that this issue be resolved prior to trial.

The characterization of Wendi as a co-conspirator was specifically for the purpose of acknowledging that she has enough exposure to give rise to Fifth Amendment protections. This issue was previously addressed in regard to Wendi Adelson when the defense attempted to depose her and the Court found that she legally invoked her Fifth Amendment privilege when she refused to answer their questions.

Note that a defense subpoena does not confer the same immunity that a State subpoena does, so there are different legal consequences involved. Nothing about the characterization of Wendi Adelson in this way suggests there is new evidence against her or that there are any imminent additional arrests in this case.

As some of you might recall, Wendi Adelson did in fact testify at the first Magbanua trial—but she did so pursuant to a subpoena from the state, which under Florida law automatically conferred use and derivative-use immunity upon her. For the retrial, Wendi has been subpoenaed by the defense, which would give her no such immunity.

The prosecution does not want Wendi to be called to the witness stand just to invoke the Fifth in front of the jury. So this is why, in the motion-in-limine briefing, it described her as a potential co-conspirator, “specifically for the purpose of acknowledging that she has enough exposure to give rise to Fifth Amendment protections.” In other words, this reference to Wendi as a “co-conspirator” is something of a legal technicality, not necessarily an indication of her involvement in the murder plot (at least at the current time).

3. The defense could have some tricks up its sleeve for the retrial.

At Katherine Magbanua’s first trial, she saved herself by doing what relatively few defendants do: she took the stand in her own defense. Through a dramatic star turn on the witness stand, she won over two holdout jurors, whose refusal to convict led to a mistrial. Her decision to testify came as a surprise—which I think caught the prosecution somewhat flat-footed, making her testimony all the more effective.

Of course, now the prosecution will be fully prepared if Magbanua testifies—so don’t be surprised if she doesn’t testify this time around. But after I spoke last week by phone with Chris DeCoste, who represents Magbanua along with Tara Kawass, I think Georgia Cappleman and her team should be prepared for some new curveballs.

For starters, as discussed above, the defense has listed Charlie, Donna, and Wendi Adelson as witnesses, and it would like to put them in front of the jury—over the objections of the prosecution. It has long been the theory of Magbanua’s defense that the Adelsons did in fact commission Markel’s murder, but without any involvement from Magbanua.

If Magbanua’s lawyers succeed in getting the Adelsons in front of the jury, even (or especially) if the Adelsons do nothing but invoke the Fifth, that could be powerful evidence in support of Magbanua’s theory that the Adelsons are the true guilty parties. It will raise in the jurors’ minds a question that many observers of this case have been wondering for years: why aren’t the Adelsons on trial?

Not surprisingly, the prosecution does not want the Adelsons brought in front of the jury just to invoke the Fifth, and they would like to get that decided prior to trial. So there has been motion-in-limine briefing on the question, and the issue will be discussed during pretrial hearings (originally scheduled for this month, now postponed until closer to the new trial date).

As Chris DeCoste explained to me, the position of the defense—which finds some support in Florida law, including a prior appellate decision in this very prosecution—is that the Fifth Amendment privilege must be invoked on a question-by-question basis, i.e., it can’t be invoked in blanket fashion to keep someone from having to testify at all. So the defense will argue that the Adelsons can be brought into court, they can be asked questions without the potential to incriminate themselves—and then they can take the Fifth when asked specific questions that could incriminate them.

“We think the Adelsons should be charged,” DeCoste told me. “There’s been this view that they’re behind us [Magbanua and her lawyers], that somehow we are puppets for them. The only way we will clear this up is if we can put the Adelsons on the witness stand and ask them tough questions. Regarding any speculated connections between Katherine, Tara, myself, and any Adelson, let me cross Charles or Donna, and that will be cleared up real quick.”

I pressed DeCoste on this point, mentioning that some people who have been following this case suspect that the Adelsons are paying for Magbanua’s legal defense—and that perhaps the Adelsons have promised compensation for her (or maybe a trust fund for her two children) if she hangs tough and doesn’t “flip.” In other words, as I put it to DeCoste, have the Adelsons promised Magbanua a pot of gold at the end of the rainbow?

“There’s no pot of gold at the end of the rainbow for Katie—no shiny gold, just a heavily tarnished name after being wrongfully prosecuted,” DeCoste said. “There are zero connections between Katie and the Adelsons, and Charles Adelson should be prosecuted for the murder of Professor Markel. It’s also super-unreasonable to think a mother would risk life in prison—and never seeing her kids again—for any sum of money.”

So DeCoste and Kawass want to call the Adelsons—and other witnesses as well. One is Jessica Rodriguez, the “baby mama” of one of the two hit men, Luis Rivera. According to DeCoste, Rodriguez has made statements about the alleged delivery of Rivera’s cut of the money for the murder that are inconsistent with Rivera’s account. It’s the defense’s theory that Rivera tried to coach Rodriguez on what to say about the money drop—but that it didn’t quite work, which is why she has given inconsistent statements on the subject.

Another person on Magbanua’s witness list: hit man Sigfredo Garcia, the father of Magbanua’s two children. Garcia was tried alongside Magbanua, convicted, and sentenced to life in prison. He appealed, and he lost—so now he has nothing to lose. Might he take the stand at Magbanua’s retrial and give shocking testimony—for example, testimony that he contracted directly with Charlie Adelson for the murder, without any involvement from Magbanua? Might he take the blame, in an effort to save the woman he loves?

Yes, it sounds like something out of a Lifetime original movie. But it’s no less Lifetime-ish than Garcia’s final words to Magbanua, as he was led out of the courtroom after the jury’s guilty verdicts against him: “I love you, Katie.”

4. Legislation providing for grandparents’ visitation rights continues to move forward in Florida.

One of the most heartbreaking aspects of this case is how Dan Markel’s parents, Ruth and Phil Markel, have not been able to see their two grandsons—for years. After Dan’s murder, Wendi Adelson moved the boys from Tallahassee to South Florida, changed their last names from “Markel” to “Adelson,” and refused to allow the Markels to see their grandsons, despite their repeated pleas.

Currently pending in the Florida legislature is a proposed law that’s unofficially known as the Markel Act. It would extend visitation rights to grandparents under narrow circumstances, but circumstances that might someday be present here: if you have grandparents (like Ruth and Phil Markel), and their child/parent of their grandchildren is killed (like Dan Markel), and a court rules in a wrongful-death case against the surviving spouse/parent (like Wendi Adelson), then the grandparents would get visitation rights.

It’s quite possible that no member of the Adelson family will ever be held criminally responsible for the murder of Dan Markel—especially Wendi Adelson, who can claim that she was unaware of any plot hatched by her brother Charlie and her mother Donna. But if Wendi is ever held civilly responsible in a wrongful-death case, which of course has a lower standard of proof than a criminal prosecution, then maybe Ruth and Phil Markel might be able to see their grandsons.

That would, of course, be a far cry from justice for Dan Markel. But if the Markels get to see their grandsons again someday, it would make this entire tragedy just a little less tragic.

1. This post assumes familiarity with prior developments in the Markel case. If you haven’t followed it, there’s no shortage of coverage: my many stories back when I wrote for Above the Law, several television news specials, and a compelling podcast, Over My Dead Body.

For those of you not familiar with the story, here’s some brief background for present purposes. Dan Markel was murdered in July 2014. After almost two years of no apparent progress in the case, two hit men, Sigfredo Garcia and Luis Rivera, were arrested and charged with Markel’s murder. As a professor at Florida State University, Markel lived in Tallahassee; Rivera and Garcia lived in the Miami area., more than six hours away. Why would two hit men from South Florida travel to the other end of the state to murder a law professor?

Investigators noticed some connections that struck them as more than mere coincidence: Sigfredo Garcia has two children with Katherine Magbanua, who happens to be an ex-girlfriend of Charlie Adelson, who happens to be the brother of Wendi Adelson—Dan Markel’s ex-wife, whose ugly divorce from Markel became final in 2013. Based on these ties and other evidence, prosecutors believe that Charlie Adelson and his mother Donna Adelson, working through Katie Magbanua, hired Garcia and Rivera to kill Markel.

2. Magbanua’s lawyers seek a continuance on additional grounds, which relate to securing an out-of-state witness through interstate process, deposing a new expert witness from the government, reviewing certain documents related to Charlie Adelson, and other research and discovery. The government does not join in these grounds, but their existence is another factor supporting continuance: pushing the retrial back to May (or later) would give the defense more than enough time to address these items.