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The Dan Markel Case: Opening Statements
Is the best defense a good offense for Katie Magbanua?
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Yesterday the prosecution and defense delivered their opening statements in the trial of Katherine Magbanua for the murder of Professor Dan Markel.1 This is Magbanua’s second trial; her first trial ended in a mistrial in October 2019, then the retrial got postponed repeatedly. Finally, Magbanua faces a jury of her peers—again.
I listened to the opening statements. And if you, like me, are hoping for a conviction of Katie Magbanua this time around, you should be worried—very worried.
The prosecution did a solid job. This time around, assistant state attorney Sarah Dugan delivered the opening statement, instead of chief assistant state attorney Georgia Cappleman (who has been the lead prosecutor on the case for years, and who delivered the opening in 2019). Dugan outlined the case against Magbanua methodically, thoroughly, and persuasively. Perhaps Dugan could have delivered her opening argument with more emotion, but I appreciated her sober delivery and focus on the evidence. She did well.
Tara Kawass, who along with co-counsel Christopher DeCoste represents Magbanua, gave a more animated opening—and a very strong one, I must admit. As her opening made clear, the defense is going to be more aggressive this time around—and it just might work.
A typical defense is just to emphasize that the prosecution bears the burden of proof, and it must satisfy a very demanding standard: proof beyond a reasonable doubt. But the best defenses—and often the defenses that involve an actually innocent defendant—offer an alternative theory of the case. It’s not just “the prosecution can’t prove my client’s guilt beyond a reasonable doubt,” it’s “the prosecution can’t prove my client’s guilt beyond a reasonable doubt—and here’s what really happened.” This type of defense refutes the prosecution’s implicit refrain of, “If this defendant didn’t do it, well, then who did?”
This time around, Katie Magbanua’s lawyers have an alternative theory of the case. In her opening, Tara Kawass conceded two important points to the prosecution: yes, the two hitmen, Sigfredo Garcia and Luis Rivera, actually committed the murder of Dan Markel, and yes, they were hired by Charlie Adelson. In fact, throughout her opening, Kawass attacked Charlie, blaming him for the murder and calling him a “master manipulator” who mistreated Katie during their relationship—like he mistreated so many other people in his life.
The defense’s main point of disagreement with the state: Magbanua did not serve as the go-between connecting the hitmen with Charlie, was not involved in the plot, and in fact knew nothing about it. Instead, Charlie Adelson contracted directly with Sigfredo Garcia for the murder of Dan Markel. Here is Kawass’s narrative for that, based on her opening:
Katie and Sigfredo had a tempestuous, on-and-off relationship. At a certain point, Katie got fed up—with Sigfredo’s addictions to cocaine, alcohol, and other women—and kicked him out of the home they shared with their two kids.
Shortly thereafter, she met Charlie, while she was working at a dental office that he worked with as a visiting periodontist. He laid on the charm, and they started dating.
Sigfredo was terribly jealous while Katie was dating Charlie, often stalking Katie when she would go out with Charlie. Eventually, unbeknownst to Katie, Sigfredo confronted Charlie, telling Charlie that he wanted Katie back. Charlie made Sigfredo the following proposal: fine, you can have Katie back, but you need to do me a favor: murder Dan Markel. To sweeten the deal, I’ll pay you $100,000.
Sigfredo accepted the proposal and carried out the plan. And in the end, according to Kawass, “Everyone got what they wanted: Charlie got what he wanted, Sigfredo got what he wanted, and [Dan Markel’s ex-wife] Wendi [Adelson] got what she wanted.”
Everyone got what they wanted—except for poor Katie Magbanua, who has been relentlessly pursued by the prosecution for years, despite her innocence.
Now, anyone familiar with the case knows that this defense has some serious problems. It does not account for so much evidence that incriminates Katie Magbanua, including but not limited to evidence about communications she was involved in right after the murder, the “money drop” she participated in, and secretly recorded conversations between her and Charlie Adelson.2
But to jurors who don’t have intimate knowledge of this case—like these jurors, since jurors with strong knowledge and opinions were removed during voir dire—the defense theory might actually fly. And even if jurors find the prosecution theory more plausible than the defense theory, at that point Tara Kawass and Chris DeCoste can invoke the usual “it’s the prosecution’s burden to prove guilt beyond a reasonable doubt” argument. They can argue this to the jury: even if you find the prosecution’s theory marginally, or even significantly, more plausible than our theory, that’s not enough—you need to accept their theory beyond a reasonable doubt.
This defense—articulating an alternative theory to explain events, not just denying their client’s guilt—is more aggressive than the defense Magbanua’s lawyers presented in 2019. And one can understand why.
Recall that in Magbanua’s 2019 trial, the one that ended in a mistrial, she was being tried jointly with Sigfredo Garcia. The exact status of their relationship seems perpetually murky to me, but it sounds like they were together at that time (and might still be together today, to the extent that two people in custody can be “together” romantically). When the guilty verdict against Garcia was read, Magbanua burst into tears, while Garcia leaned across defense counsel’s table and said, “I love you, Katie.”
Because of the relationship between their client and her co-defendant, Magbanua’s lawyers presumably did not want to throw Garcia under the bus too much at that first trial. Accordingly, in her opening statement in the 2019 trial, Kawass denied Magbanua’s involvement in the murder plot, but did not go so far as to blame Garcia or to claim that he dealt with Charlie directly.
This time around, things are different. Magbanua is being tried alone. Convicted in 2019, and having lost his appeals, Garcia remains in prison, isn’t going anywhere, and has nothing to lose. This time around, Magbanua’s lawyers can blame Garcia—and Garcia might even help them do it. He’s on defense counsel’s witness list; might he take the stand in this trial and testify that he dealt with Charlie directly, keeping Magbanua out of the loop entirely?
Yes, as I noted earlier, this defense theory is belied by the evidence (to put it mildly). Yes, if Garcia testifies along those lines, expect him to get shredded on cross-examination. But again, remember that the prosecution bears the burden of proof, and it must prove its case beyond a reasonable doubt. The defense theory of the case and the defense witnesses don’t need to be perfect. They just need to be good enough to create reasonable doubt in the minds of the jurors—and that will get Magbanua acquitted.
Even if the defense can’t persuade all the jurors, if it can persuade one or two to become holdout jurors, as it did back in 2019, then Magbanua gets a mistrial. And I would consider that a victory for her. It won’t necessarily set her free—I expect that the prosecution would want to try her again and in the meantime she would stay in jail, where she has been ever since her 2016 arrest—but it would give her yet another chance at a full acquittal.
The trial continues today—and you can watch it on YouTube, courtesy of the Tallahassee Democrat’s livestream. The highlight of the trial so far: Chris DeCoste’s cross-examination of Wendi Adelson.
In these first few days of trial, I don’t expect there to be too much divergence from the 2019 trial. But I’ll keep you posted, whether through occasional updates for these pages or on my Twitter feed, where I can share my thoughts on the proceedings on more of a real-time basis.
Like so many others who knew Dan Markel, I’m hoping and praying that justice will be done at this trial. But I’m not going to lie: I’m very, very nervous.
[UPDATE (5/27/2022, 11:41 p.m.): Earlier this evening, Katherine Magbanua was convicted on all counts: first-degree murder, conspiracy to commit murder, and solicitation of murder. Thanks to the law enforcement officers and prosecutors who worked so hard to bring about this result, and thanks to the jurors for doing their civic duty and reaching the right and just decision.]
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As usual, this post assumes familiarity with the Dan Markel murder case. If you’re looking for background, see this earlier story, especially its first footnote.
Yes, I realize the defense has explanations for some of this evidence, including attacks on the reliability of prosecution witness Luis Rivera, a former leader in the Latin Kings gang with a long criminal history; I just don’t find the explanations that persuasive.