On Dan Markel’s 51st birthday, new judge makes pivotal rulings in his murder case

Law scholar Dan Markel would have been 51 today.

Instead, lawyers argued about details that will shape the upcoming Oct. 23 trial of Charlie Adelson, Markel’s former brother-in-law and one of many suspected of plotting his murder.

For a recap of the case, see the history of Charlie’s April 2022 arrest here, and a report on Katherine (“Katie”) Magbanua’s cooperation after her conviction here.

Over the past few weeks, Adelson’s attorney Daniel Rashbaum and the State have filed competing motions relating to everything from whether wiretap recordings can be played in trial, to specific statements individual witnesses can, or can’t, make.

Judge Stephen Everett presided.

Justice for Dan’s Karen Cyphers was in the courtroom providing us with live coverage and analysis. Here’s what was debated, and how it all shook out.

Can the state play wiretap calls for the jury?

Background: To trigger conversations between key conspirators, a sting operation was initiated in April 2016 in which an undercover FBI agent would pose as an ally of accomplice Luis Rivera and “bump” Donna Adelson with what would be presented to her to be a blackmail attempt related to her family’s involvement in Markel’s murder. A wiretap warrant for Charlie and Katie’s phones was approved to be in effect for a period just before and for about one month after this operation. The effort worked. After the undercover “bump,” Donna first called Charlie, telling him that she was given “paperwork” related to an “ex-girlfriend” — saying, “I think you’ll have a good idea what I’m talking about,” but with no mention of Katie’s name whatsoever. Despite being a prolific dater with multiple ex-girlfriends since Katie, Charlie proceeds to only call Katie about the matter, who then calls her baby daddy and sometimes-partner, convicted shooter, Sigfredo Garcia. Hundreds of calls were intercepted, many of which provided incriminating and revelatory information about the conspiracy and its participants.

Defense argument: The defense wants wiretaps excluded from trial. Their claim is that the warrant to approve the wiretap warrant was inappropriate, as the murder had occurred about two years prior, and (to their thinking) there was nothing current to justify such an invasion of privacy. In other words, the defense says, the details provided to the judge who issued the warrant were “stale” and that the state should have pursued less intrusive methods for obtaining evidence.

State’s argument: Assistant State Attorney Rachel Jankowski responded to Meyers. She presented the state’s response, presenting additional case law, and outlining the exhaustive investigation that preceded the wiretap warrant. This included multiple far less “intrusive” methods that had been either attempted or ruled out as having investigative merit. The State argued that the data provided to the court was in no way “stale.” While the murder had indeed occurred in 2014, the conspiracy itself was very much current at the time of the wiretaps, as Charlie and Donna were still paying out Katie and her accomplices. Donna was actively signing checks to Katie from the Adelson Institute, the family’s dental practice, right up until the bump – despite no evidence she was completing any work for them, and Charlie was continually providing gifts of monetary value to Katie.

One key piece of the State’s response included the following statement: “… the affiant explained in excruciating detail the flow of communication which started with Dan Markel’s ex-wife. Wendi Adelson would talk to her mother and brother, her brother would meet with and talk with his ex-girlfriend Katherine Magbanua, and Katherine Magbanua would meet with Sigfredo Garcia and Luis Rivera …”

Despite having a strong sense of who was involved, the State argued that noting the pattern of communications alone wouldn’t be enough for convictions. Rather, evidence of the content of these communications was needed. That’s what the wiretaps achieved, and why the warrant to intercept conspirator calls was indeed proper.

Judge’s decision: Pending. Everett asked multiple follow-up questions of Jankowski, clarifying that the bump was expected to provide evidence of the murder as well as fresh evidence of attempts to conceal the completed crime. He will be reviewing additional case law provided by State and Defense and then provide his ruling.

Can the “enhanced” Dolce Vita recording be played for jurors?

Background: The first time that Charlie and Katie met post-bump was two days later, at Dolce Vita, a loud cafe. The FBI arrived to listen in and set up with a camera and audio recording device tucked into a bag. Despite significant audio interference, large parts of their conversation were audible — and even more so after the state had an expert (James McElveen) “enhance” the recording using state-of-the-art techniques to reduce background noise.

Defense argument: The defense is asking the Court to exclude McElveen’s enhanced version on the basis that while it makes Charlie’s voice a bit more audible, Katie’s half of the dialogue is still largely indiscernible.

State’s argument: When former Judge Robert Wheeler admitted the enhanced recording in Katie’s 2022 trial, he did so properly. Jankowski told Judge Everett that prior jurors told the state after Katie’s trial that not only was the recording audible, but it was compelling. While Katie’s voice isn’t as discernible as Charlie’s, Jankowski pointed out that Katie said little to nothing during their conversation — that the majority of it was Charlie talking. And, even without further context, Charlie’s portions are independently important.

Judge’s decision: The McElveen enhancement is admissible.

Can the first few minutes of the Dolce Vita recording be played for jurors?

Background: By the time the enhanced recording begins, Charlie and Katie are already into their dialogue. The first thing that can be heard is Charlie saying, “If they had any evidence, we would have already gone to the airport.”

Defense argument: The defense contends that there’s no context offered to the jury for Charlie making this statement, that it could have been unrelated to the “bump” or murder, and therefore, should be excluded from what jurors hear. Rashbaum argued to Everett that playing this recording would deprive his client of his right not to testify. Rashbaum got heated, saying that if Magbanua is called to testify, the contents of this call should be allowed in.

State’s argument: This statement is clearly made in reference to evidence in this case, as the purpose of the pair’s meeting was to discuss the “bump” the two were not involved in any other case for which “evidence” is relevant, and the following conversation is exclusively about this case.

Judge’s decision: The first few minutes of “Dolce Vita” will be admissible.

Can the Dolce Vita transcript be shown to jurors?

Background: In Katie’s 2022 trial, Wheeler ruled that the transcript of the Dolce Vita recording could not be shown to jurors, because no party to the conversation (neither Katie nor Charlie) would be willing to validate the accuracy of it. Rather, the jurors themselves were the only ones qualified to determine what they heard.

Defense argument: The defense argues that nothing has changed since Wheeler’s ruling, and the decision should be maintained.

State’s argument: The State argued that transcripts are valid demonstrative aids that wouldn’t be used in a vacuum — jurors would also be able to re-listen to the audio itself.

Judge’s decision: The transcript will not be admissible.

Can Jeff Lacasse tell the jury that Wendi admitted her brother Charlie had seriously looked into hiring hit men the prior summer?

Background: After Wendi’s divorce, she dated multiple people, including Lacasse, an FSU professor of social work with firm roots in Tallahassee. In the prior two trials, Lacasse testified that the topic of Dan and Wendi’s divorce litigation was incessant and highly upsetting to Wendi, and that she hated Tallahassee and desperately wanted to move to South Florida. But one part of Lacasse’s testimony stands out from the rest: he shared that on multiple occasions, Wendi said that her brother Charlie had “joked” that buying her a TV as a divorce gift was “cheaper than hiring a hit man” — and more pointedly, just days before the murder, Wendi disclosed to Lacasse that Charlie had legitimately, seriously, looked into hiring a hit man the prior Summer.

Defense argument: Rashbaum argues that Charlie telling Wendi telling Lacasse the hit man “joke” is a clear case of “hearsay within hearsay for which there is no exception under Florida law,” and that it will have a prejudicial effect against Charlie.

State’s argument: Judge James Hankinson had previously allowed Lacasse to share these statements based on an exception to hearsay relating to Wendi’s status as a co-conspirator. In this hearing, the State argued that Lacasse should be able to attest to what he heard, even if only for impeachment purposes, if other testimony differs from his.

Judge’s decision: Lacasse can share what he heard, but only for impeachment purposes.

Can Dan and Wendi’s divorce filings be shared with the jury?

Background: In the prior two trials, the State was allowed to enter into evidence hundreds of pages of documents detailing Dan and Wendi’s divorce, including motions filed by Dan himself. These motions include significant accusations, such as disparagement by Donna against him in front of his children, financial misdoings by Wendi, and Wendi’s breach of their marital settlement agreement. Other testimony validates that Wendi was incessantly talking about her divorce litigation. It would be unrealistic to assume Wendi withheld this information from the brother she reports to be extremely close to.

Defense argument: Rashbaum contends that Dan’s motions are hearsay, and beyond that, there’s no evidence that his client had any knowledge of the contents of the divorce file. In other words, he says, if details from the divorce were the motive for the murder, it still can’t be proven that Charlie knew any of that, and therefore, it couldn’t be his motive.

State’s argument: Just as the State argued in the prior two trials, the contents of the divorce file aren’t intended to show the “truth” of what had transpired between Dan and Wendi, but rather, to demonstrate the level of acrimony — a factor in the motive to have him killed.

Judge’s decision: The divorce records will be admitted.

Can June Umchinda share that Donna felt “haunted” by Dan Markel

Background: Umchinda was Charlie’s girlfriend at the time of the “bump.” June has remained largely loyal to Charlie, despite what she admits was a long history of his cheating on her, demeaning her, and prioritizing other things above her. After learning that Charlie had cheated and fathered a child with another woman, June agreed to an interview with the FBI. In this, she shared a number of important things — including how Charlie was a nervous wreck after the bump, how he was constantly talking on WhatsApp with Wendi, and how he kept large stacks of cash in his home safe — stapled together. This odd, unique habit ties him to the cash that Luis Rivera testified he received in a paper bag, the day after he and Garcia completed the job. However, it’s a statement of a different nature that Rashbaum wants the judge to prevent June from sharing: that Donna felt Dan Markel was “haunting” her from the grave.

Defense argument: Rashbaum says this comment is hearsay, made at a time when Charlie wasn’t present. It is important to note here that Rashbaum previously represented Donna and Harvey Adelson and may continue to have some of their interests at heart.

State’s argument: This statement goes to “consciousness of guilt” and reflects the state of mind of co-conspirators. “Donna’s state of mind is relevant to Charlie Adelson, and the events that led up to the murder,” Jankowski argued.

Judge’s decision: The Judge will give the State a day to see if there’s any additional evidence regarding Charlie’s specific state of mind — but is leaning toward “hauntings” being excluded.

Most evidence will be admissible, with a few big questions yet to be determined

McElveen’s enhanced audio from the Dolce Vita meeting can be played (including the first 30 seconds), Jeff Lacasse can share (even if only for impeachment) what Wendi told him about Charlie looking into hiring a hitman, and the entire acrimonious divorce records can be shared.

Rulings on a few issues remain outstanding, the largest being whether the wiretaps will be admissible. Other outstanding decisions include whether a transcript of a recording of Charlie and Harvey at a sushi restaurant (“Matsuri”) may be shared, and if Umchinda may disclose that Donna felt “haunted” by Charlie.

Beyond these issues, Everett denied the ability for the Defense team to use a special questionnaire during jury selection and will allow jurors to use headphones when listening to audio.

Regarding whether Rivera’s status with the Latin Kings can be shared with the jury, Rashbaum requested a sidebar with Everett to avoid sharing his defense strategy in open court. Ultimately, Everett ruled that the association with Latin Kings can’t be invoked with the jury – but that the issue could be readdressed at trial if needed.

Finally, Everett will hear arguments on Thursday at 11:30 a.m. regarding whether Donna and Harvey Adelson should be forced to sit for investigative interviews, or if they can be held in contempt of court for refusing to do so.

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Florida Politics provides ongoing coverage of the Markel murder case, which is drawing international media attention to Florida’s capital city. Our reporting draws from sources including contributor Cyphers of Sachs Media, who, with attorney Jason Solomon, advocates with the grassroots group “Justice for Dan” to draw attention to the case and provide analysis relevant to Florida’s political, advocacy and legal communities.