1.Defense Motion for Judgment of Acquittal
97 linesPROCEEDINGS
JUDGE EVERETT: Let's go ahead and go on the record this morning. Where we left off on Friday, the State had rested its case, and it was the defense's opportunity to make any mid-trial motions, if they had any to make at all.
Mr. Zelman?
MS. CAPPLEMAN: Judge, can we approach before Mr. Zelman addresses Your Honor on that topic?
JUDGE EVERETT: Please approach.
(Sidebar conference as follows:)
JUDGE EVERETT: All right. Go ahead.
MS. CAPPLEMAN: Judge, my appellate folks have asked me to ask you if you will make a finding on the record regarding the admission of the coconspirator statements that the State ultimately was permitted to introduce. Did you find sufficient evidence at the conclusion of all the State's evidence to support the admission of those as coconspirator statements?
JUDGE EVERETT: I did. I'll allow the defense to make any objection for the record if it needs to at this time.
MR. ZELMAN: We would, Your Honor. The statements that I believe are issues, specifically concerning the ones that Jeff Lacasse said that Wendi made, those were admitted for impeachment purposes. They are not substantive evidence. And --
JUDGE EVERETT: Well, the two layers that were required by the motion in limine, one was impeachment, which was definitely satisfied by the testimony of wendi Adelson. The other being, it had to be a statement between coconspirators, the other layer. As to that, your argument is -- go ahead.
MR. ZELMAN: In that vein, it also would have to be in furtherance of the conspiracy. The statement was made in the past tense. There's been no evidence admitted that Donna Adelson at the time either the statement was made by Charlie Adelson, sometime in the summer of 2013, or at the time that wendi made the statement in July of 2014, that Donna Adelson was a member of that conspiracy. And certainly with respect to the statement made in July of 2014, there's no evidence that that statement was made in furtherance of the conspiracy.
JUDGE EVERETT: As to the chain of communications that occurred between unindicted conspirators, indicted and convicted conspirators and the Defendant, I will find there was a sufficient nexus as to satisfying all admissibility thresholds.
Any other matters that you need to raise?
MS. CAPPLEMAN: And I think there was an objection to all Charlie Adelson's statements as well on the wire and maybe elsewhere. So would your ruling apply to those statements as well?
JUDGE EVERETT: It would apply to those statements, but also as a demonstration of the Defendant's intent to either assist, encourage, or cause Counts 1 and 2 or participation in the solicitation as to Count 3.
MS. CAPPLEMAN: Nothing further, Judge.
(Sidebar conference concluded.)
JUDGE EVERETT: Does the defense have any motions to raise at this time?
MR. ZELMAN: Yes, Your Honor. The State's sidebar actually addressed one of the motions that I was going to make.
with respect to the State's case, at this point in time, the defense would move for a judgment of acquittal. The State has indicted Mrs. Adelson on three counts, first-degree murder, conspiracy to commit first-degree murder, and solicitation to commit first-degree murder.
All three charges, obviously, of the indictment require that the State present evidence that Mrs. Adelson intended for Mr. Markel to be killed. However, as this Court is aware, a judgment of acquittal should rarely be granted on the issue of intent. However, the remaining issues are different. Specifically, whether the evidence lends itself to a finding that Donna Adelson was a principal to first-degree murder, whether she conspired for Mr. Markel to be killed, or she solicited another to kill Markel.
To go through this briefly, Your Honor, to prove Count 1, the State has to establish, obviously in the light most favorable to the State, the evidence would have to support a finding that Mr. Markel is dead, the death was caused by the criminal act of Mrs. Adelson, and there was a premeditated killing of Daniel Markel.
Since there's no evidence that Donna Adelson, herself, committed the crime, you have to look at the principal instruction. The principal instruction requires that in the light most favorable to the State at this stage of the trial, that there is competent evidence that Donna Adelson helped somebody else, or other persons, commit the crime, specifically that she intended the crime to occur. And I think we go back to the initial statement I made about intent, but also that she did some act or said something that was intended to and that did incite, cause, encourage, assist, or advise the other person or persons to actually commit the crime.
And for this, I think it's important that we look at how that is defined. And the most recent case on the issue where it was discussed at length is Denise Williams. In the williams’ case, the First DCA focused on what was done the day of. So in this case, it would be July 18th of 2014. And the cite for the williams’ case is 314 So. 3d 775. It's a First DCA from "21.
It's our position, Your Honor, that there's no evidence that Donna Adelson did some act or said something that was intended to and that did incite, cause, encourage, assist, advise -- or advise the other person or persons to commit the crime. And as williams indicated, you have to focus on what Mrs. Adelson did on July 18th of 2014. The williams’ decision says, Proof of conspiracy alone is not enough.
And so in the light most favorable to the State, let's go through briefly what the evidence reflects. Daniel Markel was killed by Sigfredo Garcia, who was driven to and from the scene by Luis Rivera on July 18th of 2014. Both of them were solicited by Katherine Magbanua to drive from South Florida to Tallahassee.
Luis Rivera testified that they were hired by the wendi lady to get her kids back. Luis Rivera testified that he saw that Sigfredo Garcia had a picture of Markel with some writing, which he believed to be an address.
They made two trips to Tallahassee. During both of those trips, according to Mr. Lacasse, Wendi Adelson acted truly anxious and exhibited odd behavior. At the time of both of those trips, Mr. Lacasse was scheduled to be heading out of town, and he drove a vehicle that looked similar to the ones rented by the shooter.
There's no evidence that my client ever spoke with Katherine Magbanua, Sigfredo Garcia, or Luis Rivera.
JUDGE EVERETT: Your client did speak, however, with Charles Adelson. And the chain of communications, I believe the State's wording was the train cars.
MR. ZELMAN: Yes, Your Honor. I'm going to get to that.
JUDGE EVERETT: Go ahead, please.
MR. ZELMAN: Thank you.
The evidence -- the undisputed evidence is that Charlie Adelson kept stacks of stapled cash in his house. There is no evidence that Donna Adelson did the same. The evidence also reflects that Charlie Adelson had a safe the size of a refrigerator. There is no evidence that Donna Adelson had a similarly large safe.
Before Mr. Markel was murdered, wendi Adelson told Jeff Lacasse that the only way she could leave Tallahassee is if something happened to Mr. Markel. There is no evidence that Donna Adelson was aware of the statement made by wendi Adelson, and there is no evidence that she also agreed that there was no way that Wendi Adelson could leave Tallahassee unless something happened to Dan Markel.
Before Mr. Markel was murdered, wendi Adelson told Mr. Lacasse that Charlie looked into hiring a hit man in the summer of 2013 after relocation was denied. There is no statement in evidence whatsoever that Donna Adelson was either aware of that or said or did anything to encourage that or incite that.
There's also no evidence that had been admitted that Donna Adelson was aware of the claim -- I'm sorry -- that Charlie Adelson actually looked into that. And, additionally, before Mr. Markel was murdered, whenever Charlie was on the phone with his mother, he would walk out of the house to speak with his mother on the phone when Katherine Magbanua was there. After Mr. Markel was murdered, Katherine Magbanua went to Charlie's house. Charlie -- according to the evidence in the light most favorable to the State, Charlie told her that his parents had just left.
I rewatched her testimony over the weekend. During her testimony, she did not say that Charlie said anything at that point about his parents leaving money at the house. She testified that she woke up the next morning and Charlie said he had put the money in the trunk. She then left and tried to locate Sigfredo Garcia.
She testified that when she got the money back later that day, or the following day, that the money was stapled together. Her testimony was pretty clear. She said, A couple of days later, I'm pretty sure I contacted him and asked him why the money was wet. She did not say that she did.
After Mr. Markel was murdered, Donna Adelson followed her daughter's instructions and used the last name Adelson for her grandchildren. After Mr. Markel was murdered, Donna Adelson conveyed the message from their family attorney, Weinstein, to Rob Adelson to not talk to the cops. After Mr. Markel was murdered, Donna Adelson wrote checks from Charlie Adelson's business account to Katherine Magbanua at Charlie's instruction.
The evidence that has been admitted reflects that that business belonged to Charlie from 2012 to 2020. As this Court knows, being a manager of an LLC is not the same as being an owner.
After Mr. Markel was murdered and the bump happened, Donna Adelson begged the undercover to go to the cops and tell them what he knew. After Mr. Markel was murdered, Charlie kept up the lie that he told Donna Adelson when discussing the arrests of Sigfredo Garcia and Luis Rivera.
Now, the only way -- it is our position, the only way that the State overcomes Counts 1 and 3 is by improper stacking of inferences. They have evidence that Donna Adelson allegedly hated Mr. Markel. The evidence is that Donna Adelson didn't like how Dan Markel treated wendi. The evidence reflects that from 2012 to 2013, according to the emails from Donna Adelson, a nonnegotiable was relocation.
However, after July 31st of 2013, there's been no evidence admitted in this trial that Donna Adelson said or did anything to convey the message that she wanted -- she would do anything for wendi and the children to move to South Florida. There's no mention --
JUDGE EVERETT: As to the argument about inferences, however, inferences plus a confession, and you're saying the State has not met its burden?
MR. ZELMAN: Judge, I'm getting to that.
JUDGE EVERETT: Please do.
MR. ZELMAN: There's no evidence that she solicited anyone to murder Markel aside from these assumptions. The emails, the text messages, the testimony, no one has said that my client solicited anybody to commit murder.
The evidence reflects that Donna Adelson vented to Charlie Adelson about how Markel treated wendi, but as I said, there's no evidence, aside from assumption, that she went a step further.
The State has submitted the July 17th, 2013, email to her parents’ shared account. And one of her parents responded, wow. The evidence also reflects that had it been Donna Adelson that responded, all the other email correspondence that's been admitted reflects that she would have sent something much longer.
But even if she did know it, the motion itself -- and I would ask the Court to take a look at the prayer for relief in that grandmother motion. It was not to prevent Donna Adelson spending time with the boys. It was to spend -- or unsupervised. It was to prevent her from spending time with the boys in contravention of the right of first refusal, not to prohibit any unsupervised contact.
So even if the Court were to find that in the light most favorable to the State, that my client was aware that the grandmother motion was filed, the relief that the State believes was sought is not what was sought in the motion.
As to the alleged confession, Your Honor, what -- the confession, as I heard it, was that she wrote the checks. She paid the money after --
JUDGE EVERETT: I think we will get the court reporter to read, if need be, but go ahead. Please finish.
MR. ZELMAN: What she did after the murder is not evidence of her intent prior to the murder. And that's what Williams talks about. What evidence is there in the light most favorable to the State that prior to the murder, Mrs. Adelson did something?
I think that if we were before the Court on a different charge, and the statute of limitation had not expired on it, that the situation might be different. But we're here for principal to first-degree murder, conspiracy, and solicitation. Venting about how somebody is treating their daughter is not the same as asking somebody to have them killed.
The evidence reflects that -- I know that the State's argument, or belief, is that the birthday gift is a murder. But the birthday gift, the evidence reflects, was the party and the caterer. You have to make an inference on top of another inference that the birthday gift was murder.
So focusing on what evidence exists as to my client's statements and actions prior to the murder actually happening, according to williams, a judgment of acquittal is appropriate on Count 1.
JUDGE EVERETT: Concerning williams specifically, was there evidence of consciousness of guilt admitted against the Defendant in the same way it's been in this trial?
MR. ZELMAN: In Williams?
JUDGE EVERETT: Yes.
MR. ZELMAN: I don't believe so.
JUDGE EVERETT: So in addition to any circumstantial evidence, any inference, we also have in this record the Defendant allegedly making a confession, suborning perjury, and attempting to flee. As to those pieces of evidence linking up with the others, what is your argument?
MR. ZELMAN: Well, Your Honor, I think williams speaks to the fact that there's even more evidence. In williams, you have the coconspirator testifying directly that Ms. williams was involved in the planning, but she wasn't involved in the execution.
All of those -- the after-the-fact things, yes, it might be relevant to consciousness of guilt. However, it doesn't overcome the absence of evidence as to what Donna Adelson did on July 18th of 2014. That's what williams speaks to.
JUDGE EVERETT: And you're disputing that she dropped off any money to Charles Adelson on that date as payment to the triggermen?
MR. ZELMAN: what I'm saying is that there's no evidence that she knew on July 18th in the light most favorable to the State -- obviously, I disagree ultimately that that's what happened. But in the light most favorable to the State, which is the standard that we are applying here today, there has to be that next step, that she knew what it was for, and there's no evidence that she did.
AS a result, Your Honor, we're asking the Court to grant a judgment of acquittal on Count 1 and Count 3.
JUDGE EVERETT: Response from the State?
MS. DUGAN: In considering this JOA argument, as to whether there is sufficient evidence for this Defendant to be a principal to the charges, the State first wants to point out the emails in this case that detail the Defendant's hate for Dan Markel in her motive. If he's out of the picture, then wendi and the grandsons can come to live in Miami where she is, and she was the person who benefited most from this crime by them being able to do that.
we also heard from Luis Rivera. He said that he and Garcia followed Dan Markel's car from his home, to the daycare, to the gym the day of the murder, and had surveilled Dan Markel's comings and goings from the park outside of Trescott Drive in the month before and the weekend of the murder.
we also saw in the Defendant's planner where in 2014 she had the, you know, year, make, model of Dan Markel's car, as well as his license plate.
we also heard from Katherine Magbanua. She said that Charles Adelson said that his parents had just been at his house the night of the murder when she arrived, and then also told her his mom had washed the money. This was the same money that was provided to the killers and that Magbanua found was wet.
That testimony was corroborated by phone evidence showing that the Defendant stopped at Charlie Adelson's house the night of the murder. We saw the text message from her saying she's outside his house, and that was during the short stretch of highway where she has one hour unaccounted for on her drive. when the rest of her drive, she was able to accomplish within the estimated time that the mapping software would think that she would have.
we also heard from Rob Adelson and heard that she told him not to talk to the FBI. And when he let her know that he already had, she said, well, you don't know anything anyway. She also had a complete lack of curiosity about what happened, according to him, and said that, you know, I don't know and I don't care what happened. It's not my concern.
we saw from the evidence that this Defendant had access to a large amount of cash, kept her cash in a safe, and that it was very common for she and Charlie Adelson to transfer cash back and forth to each other.
we saw that she signed 44 checks to Katherine Magbanua from Adelson Institute over the course of two years. This is despite the fact that Charlie Adelson had signing authority there. He could have done it himself if it was just him acting alone here.
we also heard that in 2015, Harvey Adelson bought Adelson Institute back from Charlie Adelson, and we saw on the summary of the checks, where roughly half the checks written to Katherine Magbanua were written from fall of 2015 to spring of 2016, where Harvey Adelson would have been back as one of the primaries in the business.
Donna Adelson, we also saw from the bump video, she was handed an article with Danny's picture about the murder, and she calls her son. He's the first call that she makes. And she tells Charlie specifically that this involves the both of us and that it involves the two of us, when she's talking about the article that she was handed about Dan Markel's murder.
So while there is a lot of circumstantial evidence and inferences in this case, there is also direct evidence. And the State argues that her admission that after being handed an article about the murder that it involves both of us and it involves the two of us to Charlie Adelson, is direct evidence and an admission of guilt in this case.
And she also tells Charlie Adelson, the Tv costs five, or this TV is about five. And that's the same Tv that's referenced that Charlie Adelson bought instead of hiring a hit man, and that wendi's family -- that her mother helped set up as part of her alibi and emailed wendi about that day after the appointment was made by her father.
when the wire took place, she and Charlie Adelson are overheard discussing the fact that they don't need to be talking on the phone. They don't need to be talking in an apartment. They go to great lengths to take a walk outside, to sit down by the water where they can't be overheard, to sit by the pool where they believe they are not able to be heard by law enforcement.
And on the wire, we see the same pattern of communication that was seen in the call detail records before the wire took place, Donna to Charlie, to Katherine, to Garcia. And this is consistent with Magbanua’s testimony of how communication was relayed in this case.
JUDGE EVERETT: Before you continue, Ms. Dugan, specifically as to the argument of stacking inferences, what is the State's position?
MS. DUGAN: The State's position is there are inferences in this case. There is circumstantial evidence in this case. However, there is also direct evidence. Even if there was only substantial -- circumstantial evidence, you know, the Bush case from the Florida Supreme Court did away with excluding every reasonable hypothesis of innocence in circumstantial evidence cases.
However, that's more than -- we have more than just that here. we have this Defendant writing checks to the middleman of this murder. we have her admitting, It involves the two of us.
And then we also have her suborning perjury by admitting to one of her friends in custody, Patricia Byrd, that she did do what she was accused of. That's what Ms. Byrd said on direct, and I clarified that with her on redirect. Was it that she told you that she just wrote checks, or did you specifically ask her, Did you do what she's accused of -- or did you do what they say you did? And she said that, No, she said she did what she was accused of.
And she's also offering to pay for false testimony from Byrd and from Ms. Bernhardt, and even writing a script for Ms. Bernhardt to come in and recite in trial.
We also have Charlie Adelson -- or I'm sorry, we also have Donna Adelson adopting Charlie Adelson's extortion defense during and after Charlie's trial through text messages. And on the other hand, we have texts between Donna Adelson and Charlie Adelson in 2016, where we see that Charlie Adelson is telling her that his attorney is meeting with Garcia's attorney. And we see her reaction to that, which is not consistent with someone who believed that they were being extorted by Garcia or by that group for the past two years.
we also see the 2016 text messages, where we see Donna Adelson's reaction to Charlie Adelson workshopping this other possible theory of Dan Markel's murder. And our argument is that reaction is not consistent to -- with somebody who believed that she was being extorted, according to Charlie Adelson, for the past two years.
we also have evidence of consciousness of guilt in this case. we have her fleeing with an emergency fast-track Visa she sought to obtain within hours of Charlie Adelson's verdict. And within, also, hours of Charlie Adelson's verdict, sending a text that says, basically, You know I'm next. But that won't happen, and I'll take care of that. And then going to board this flight to a non-extradition country a week later.
So the State's argument is all of that circumstantial evidence, combined with the direct evidence in this case, in the light most favorable to the State, there has been competent, substantial evidence that a reasonable trier of fact could find the existence of the elements of this crime beyond a reasonable doubt.
JUDGE EVERETT: All right. The legal standard the Court must apply at this point is -- reviewing the evidence in the light most favorable to the State, I believe in Turner v. State, 29 So. 3d 361, in moving for a judgment of acquittal, a defendant admits the facts in evidence and every conclusion favorable to the State that may be reasonably inferred from the evidence.
As to the direct evidence, the circumstantial evidence, and also the consciousness of guilt evidence, taken together I believe this is sufficient to overcome the matter that was raised in williams v. State. The motion for judgment of acquittal will be denied at this time.
Does the defense -- as to Counts 1 and 3 specifically of the indictment, does the defense have any other motions to raise?
MR. ZELMAN: Just a moment.
Judge, there was an issue that Your Honor raised last week concerning advice of counsel. I don't know if we can approach to address that.
JUDGE EVERETT: Yes. You may.
(Sidebar conference as follows:)
JUDGE EVERETT: I believe this was in the context of the Defendant's former attorney testifying and what this may ultimately open the door to, but go ahead.
MR. ZELMAN: Yes. So as we've indicated previously, we intend to call Marissel Descalzo to testify as to the advice that she gave to Donna Adelson concerning her ability to travel and leave the country.
I did some research, and there are two cases that I want to call the Court's attention to. I will hand that to you.
MS. CAPPLEMAN: Thank you.
MR. ZELMAN: The first one is Lender Processing Services v. Arch Insurance Company. It is a First DCA case from 2015. The citation is 183 So. 3d 1054. Specifically, this stands for the proposition, Your Honor, that waiver of the privilege is disfavored in Florida. when the attorney-client privilege is waived regarding a certain matter, the waiver is limited to communications on that same matter.
JUDGE EVERETT: And I want to make clear on this. I'm not saying a waiver on a topic is waiver to all. I'm merely expressing if a witness is called, they must be cross-examined on all topics that are raised by the direct. There cannot be an issue of, well, I want her to testify to this, but the State cannot cross-examine. That is where we'll end up in a position where -- ultimately, in all likelihood, that cannot occur.
If you're indicating your client is going to properly waive attorney-client privilege on all matters that Ms. Descalzo will testify to, that solves the issue. But to say, Well, she's going to testify, but she's also not waiving on those topics, that limits the cross-examination in a way that I cannot permit.
MR. ZELMAN: Well, Judge, I think that the issue is the testimony would be specific as to the advice that Ms. Descalzo gave to my client concerning whether or not there was a warrant, what conversations were had, and --
JUDGE EVERETT: Correct. The State cannot jump in on cross-examination and ask, Did she confess to you? That goes beyond the scope of the direct and also as to any bias or motive to lie.
Again, this is specifically if she's going to take the stand, she must be crossed on all topics that are gone into on direct or matters that specifically go to bias or impeachment.
MR. ZELMAN: Oh, yeah. No, I misunderstood Your Honor's concern last week to be --
JUDGE EVERETT: But, again, that's where the waiver kicks in.
MR. ZELMAN: Yes.
JUDGE EVERETT: If she is on the stand testifying, is she, in fact, waiving as to those topics of the subject of the direct?
MR. ZELMAN: TI don't think that we have a choice otherwise.
JUDGE EVERETT: I would agree with you.
Ms. Cappleman?
MS. CAPPLEMAN: I agree with that assessment. I would not intend to go beyond the scope what was asked on direct but would be expecting full and fair cross-examination on those topics.
JUDGE EVERETT: If we need to readdress as to the scope of direct or what has been broached topic-wise, we will do it out of the presence of the jury. But I think just as a matter of examining any witness, obviously, former counsel to the Defendant poses a special challenge in that way. But anyone who takes the stand must be cross-examined within the full scope of the rules of evidence.
MR. ZELMAN: So we were able to get most of the witnesses here to testify timely today. Unfortunately, one of our witnesses, who happens to be local, her daughter gave birth over the weekend, and so she is not available until tomorrow.
JUDGE EVERETT: Congratulations to them.
MR. ZELMAN: And so our family law expert, we always intended to have her testify. Subsequent to that, we're still trying to make arrangements -- now that we've gotten clarification on the Court's position concerning Ms. Descalzo, we're still trying to make arrangements to get her here. So we have, I think, six witnesses -- six or seven witnesses set for today. I don't know how late that will take us. We just were not able to get the other ones here.
JUDGE EVERETT: So between today and tomorrow, you expect for the defense's case to be presented?
MR. ZELMAN: Yes. We would ask for the Court's indulgence tomorrow afternoon so we can have some additional time to speak with our client concerning her decision to testify prior to her actually testifying. Obviously, you know, it's her right to decide, and we just want to make sure that she understands everything.
JUDGE EVERETT: I'm not going to press her on the matter, but this has been an issue which essentially has been from the time of indictment, will you testify at trial.
MR. ZELMAN: Yes. And I'm not saying that we have not discussed it with her --
JUDGE EVERETT: Correct.
MR. ZELMAN: -- since almost day one. It's --
JUDGE EVERETT: You will have an opportunity to speak before any colloquy is done concerning whether you will or won't testify.
MR. ZELMAN: My understanding with the length of the witnesses that we anticipate for tomorrow, we would not be calling her tomorrow, if she chooses. It would be Thursday.
JUDGE EVERETT: All right. Concerning that, depending on the Defendant's decision -- well, it depends. How many witnesses will you have to call on wednesday?
MR. ZELMAN: If everything lines up the way that it's supposed to, between five and six.
JUDGE EVERETT: Okay. I certainly will give you a reasonable amount of time. But if, say, we get to lunchtime or a little bit after lunch on wednesday, if you need a half hour or so to speak to her, I will certainly give that to you. But to recess for the evening, there's been an opportunity to go over this topic for nearly two years. You met with her on Saturday as well concerning trial strategy?
MR. ZELMAN: Saturday and Sunday, yes, Your Honor.
JUDGE EVERETT: All right. I will give some additional time in the courtroom, but depending on where we are falling clockwise, the jurors want to get back to their lives.
MR. ZELMAN: Yes.
JUDGE EVERETT: we do need to move this on in a timely fashion.
MR. ZELMAN: Yes. And there is one final thing I wanted to address sidebar.
JUDGE EVERETT: Go ahead.
MR. ZELMAN: Saturday morning, we -- Jackie -- Ms. Fulford received a call from somebody who identified themselves as Nicole Fields who was incarcerated with Donna, Ms. Byrd, and Ms. Bernhardt.
JUDGE EVERETT: Okay.
MR. ZELMAN: Do you want to --
MS. FULFORD: Based on the nature of the call and the way that it occurred, it was very similar and froma very similar number to the last time they tried to have somebody call me to get information. She initially said that she had no pending charges. She wasn't trying to get any help in any way, but she had information about Bernhardt and Byrd, that they were providing false information about our client. The same thing as before, on a speakerphone, couldn't hear, et cetera, et cetera.
we were actually in the jail parking lot when we received the call. And based on Agent Sanford's testimony that while he was sitting on the stand, they were still investigating, it seems to me that they are making those calls to gather additional information. And then you contacted the lawyer.
MR. ZELMAN: So after we received that call, I looked into this individual. She, in fact, is pending sentencing in federal court. She is facing a 10-year mandatory minimum for some drug charges with some gun charges, and she does not qualify for a safety valve. The only way in which she would get around a mandatory 10-year sentence is with substantial assistance.
Before we reached out any further, I contacted her attorney, Ms. Vallejo, at the Federal Defender's Office. She did not call me back until yesterday. I spoke with her briefly. She went out and met with her client who is in Sisters in Sobriety. And she called me back about 30 minutes later and indicated that if she was to be subpoenaed by the defense, she would invoke her Fifth Amendment privilege.
I don't know what Fifth Amendment privilege she would have to what she told us, but I felt it best for us to put on the record that we were contacted by this individual and that the incident happened. TI don't know, aside from the little bit that Ms. Fields said to us, essentially that Donna Adelson always said in jail that she didn't do this and that these two women are lying. I don't know that we would use that as to challenging Ms. Bernhardt's credibility because of the Court's rulings.
JUDGE EVERETT: well, you have a self-serving hearsay issue to address as well. Beyond that, if you have a witness that you need to disclose to the State, please do so formally.
Funny enough, I was doing some research on a separate matter that, Ms. Cappleman, as it relates to the Defendant's ability to present witnesses or exculpatory evidence in the middle of their case, the Court must go through a Richardson inquiry obviously. But that also does not necessarily lean towards exclusion even with a late disclosed witness.
I can't remember the case citation off the top of my head. It's a Fourth DCA case. I will provide it to you. But I want to make equally clear as well, for this individual if you choose to call them on the witness stand, the State will be permitted in rebuttal to attack in all facets. I cannot make this any more clear. You will ultimately have to make the decision you believe is appropriate and strategic for advancing your client's goals.
Does the State wish to be heard?
MS. CAPPLEMAN: Not at this time, Judge.
MR. ZELMAN: There is one more witness that we became aware of yesterday in addition to all these other fascinating issues. One of the guards at the detention center indicated that she watched Byrd and Drina's testimony, and she opined that they both have a reputation for dishonesty.
we're going to need -- we don't have a local investigator who can go and speak with this individual. So we are going to need some time this afternoon to make contact with this individual to find out what they have to say. And the basis for that, to see if we can even get reputation testimony in concerning either one of these.
JUDGE EVERETT: we are making this a true jailhouse affair. Go ahead, Mr. Zelman.
MR. ZELMAN: I felt, given where we are in the case and the trial and ongoing, that not advising the Court of these issues would not be appropriate.
JUDGE EVERETT: All of it is going to be subject to a Richardson inquiry --
MR. ZELMAN: Yes.
JUDGE EVERETT: -- which the State can make appropriate arguments as to prejudice. I'll provide the citation of the case that I was reading yesterday. Again, unrelated to this case, but obviously has become relevant now. I'll give you the citation of the case. Everyone can review it and act accordingly.
MR. ZELMAN: Yes, sir. Thank you.
(Sidebar conference concluded.)
JUDGE EVERETT: Please bring in the jurors.
(jury enters the courtroom.)
JUDGE EVERETT: Everyone can be seated.
Good morning, members of the jury.