Closing Arguments, Final Jury Instructions, and Deliberation Questions
1,595 linesJUDGE HANKINSON: Everybody be seated, please.
JUDGE HANKINSON: The next thing I'm going to do is instruct you on the law.
JUDGE HANKINSON: You will be allowed to keep these written instructions. You don't necessarily need to take any notes, lest we find a typo or something.
JUDGE HANKINSON: Despite the fact we go over them multiple times, we seem to always find some typo or some slight change that we've missed. Hopefully nothing significant.
JUDGE HANKINSON: What I would ask is that you read along with me as I go through them so that I can be certain everyone has been through them in their entirety on at least one occasion.
JUDGE HANKINSON: Members of the jury, I thank you for your attention during this trial. Please pay attention to the instructions I'm about to give you.
JUDGE HANKINSON: Sigfredo Garcia and Katherine Magbanua, the defendants in this case, have been accused of the crimes of first-degree murder, conspiracy, and solicitation.
JUDGE HANKINSON: First-degree murder includes the lesser crimes of second-degree murder and manslaughter, all of which are unlawful. A killing that is excusable or was committed by the use of justifiable deadly force is lawful. If you find Daniel Markel was killed by the defendant, you will then consider the circumstances surrounding the killing in deciding if the killing was first-degree murder or was murder in the second degree or manslaughter, or whether the killing was excusable or resulted from justifiable use of deadly force.
JUDGE HANKINSON: The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the killing. The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances: when the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent; or when the killing occurs by accident and misfortune in the heat of passion upon any sudden and sufficient provocation; or when the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner. A dangerous weapon is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.
JUDGE HANKINSON: In count one, Sigfredo Garcia and Katherine Magbanua, the defendants in this case, have been accused of the crime of first-degree murder.
JUDGE HANKINSON: To prove the crime of first-degree premeditated murder, the state must prove the following three elements beyond a reasonable doubt.
JUDGE HANKINSON: One, Daniel Markel is dead.
JUDGE HANKINSON: Two, the death was caused by the criminal act of the defendant. Three.
JUDGE HANKINSON: There was a premeditated killing of Daniel Markel. An act includes a series of related actions arising from and performed pursuant to a single design or purpose.
JUDGE HANKINSON: Killing with premeditation is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant.
JUDGE HANKINSON: The premeditated intent to kill must be formed before the killing.
JUDGE HANKINSON: The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing. In considering the evidence, you should consider the possibility that although the evidence may not convince you that the defendant committed the main crime of which he or she is accused, there may be evidence that he or she committed other acts that would constitute a lesser included crime.
JUDGE HANKINSON: Therefore, if you decide that the main accusation has not been proved beyond a reasonable doubt, you will next need to decide if the defendant is guilty of any lesser included crime.
JUDGE HANKINSON: The lesser crimes indicated in the definition of first-degree murder are second-degree murder and manslaughter.
JUDGE HANKINSON: To prove the crime of second-degree murder, the state must prove the following three elements beyond a reasonable doubt.
JUDGE HANKINSON: One, Daniel Markel is dead.
JUDGE HANKINSON: Two, the death was caused by the criminal act of the defendant. Three.
JUDGE HANKINSON: There was an unlawful killing of Daniel Markel by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life. An act includes a series of related actions arising from and performed pursuant to a single design or purpose. An act is imminently dangerous to another and demonstrating a depraved mind if it is an act or series of acts that a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and is done from ill will, hatred, spite, or an evil intent, and is of such a nature that the act itself indicates an indifference to human life. In order to convict of second-degree murder, it is not necessary for the state to prove the defendant had an intent to cause death.
JUDGE HANKINSON: To prove the crime of manslaughter, the state must prove the following two elements beyond a reasonable doubt.
JUDGE HANKINSON: One, Daniel Markel is dead. Two, the defendant intentionally committed an act or acts that caused the death of Daniel Markel.
JUDGE HANKINSON: Every person has a duty to act reasonably towards others. If there is a violation of that duty without any conscious intention to harm, that violation is negligence. The defendant cannot be guilty of manslaughter by committing a merely negligent act, or if the killing was either justifiable or excusable homicide, as I have previously instructed you. In order to commit a manslaughter by act, it is not necessary for the state to prove that the defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justified, or excusable, and which caused death. If you find that the defendant Garcia committed second-degree murder or manslaughter, you will be asked to find beyond a reasonable doubt whether during the commission of the crime the defendant Garcia personally used a firearm. You should designate this finding on the verdict form.
JUDGE HANKINSON: If you find the defendant Garcia committed second-degree murder, and you also find beyond a reasonable doubt that during the commission of the crime the defendant Garcia discharged a firearm or actually possessed a firearm, and in doing so caused death or great bodily harm to the victim, you should also designate this finding on the verdict form. A firearm is legally defined as any weapon, including a starter gun, which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. To actually possess a firearm means that the defendant Garcia personally carried a firearm on his person, or had a firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the crime. There are two ways in which a person may be a principal. If the defendant helped another person or persons commit a crime, that defendant is a principal and must be treated as if he or she had done all the things the other person or persons did, if that defendant had a conscious intent that the criminal act be done, and that defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit the crime. The defendant may also be a principal if he or she paid or promised to pay another person or persons to commit a crime.
JUDGE HANKINSON: The defendant is a principal and must be treated as if he or she had done all the things the person who was promised or received the money did, if that defendant had a conscious intent that the criminal act be done, and he or she made or promised the payment in exchange for the commission or promise to commit the crime or to help commit the crime, and the crime was committed by the other person. To be a principal under either theory, the defendant does not have to be present when the crime is committed.
JUDGE HANKINSON: If you find that the crime of first-degree murder was committed, an issue in this case is whether the crime was an independent act of a person other than the defendant. An independent act occurs when a person other than the defendant commits or attempts to commit a crime which the defendant did not intend to occur, and in which the defendant did not participate, and which was outside of and not a reasonably foreseeable consequence of the common design or unlawful act contemplated by the defendant. If you find the defendant was not present when the crime of first-degree murder occurred, that in and of itself does not establish that the first-degree murder was an independent act of another.
JUDGE HANKINSON: If you find that the first-degree murder was the independent act of another, then you should find the defendant not guilty of the crime of first-degree murder.
JUDGE HANKINSON: In count two, Sigfredo Garcia and Katherine Magbanua, the defendants in this case, have been accused of the crime of conspiracy to commit first-degree murder.
JUDGE HANKINSON: To prove the crime of criminal conspiracy, the state must prove the following two elements beyond a reasonable doubt.
JUDGE HANKINSON: One, the intent of the defendant was that the offense of first-degree murder would be committed.
JUDGE HANKINSON: And two, in order to carry out the intent, the defendant agreed, conspired, combined, or confederated with another person to cause first-degree murder to be committed, either by them or one of them or by some other person. It is not necessary that the agreement, conspiracy, combination, or confederation to commit first-degree murder be expressed in any particular words, or that words passed between the conspirators. It is not necessary that the defendant do any act in furtherance of the offense conspired.
JUDGE HANKINSON: In count three, Sigfredo Garcia and Katherine Magbanua, the defendants in this case, have been accused of the crime of solicitation to commit first-degree murder.
JUDGE HANKINSON: To prove the crime of criminal solicitation, the state must prove the following two elements beyond a reasonable doubt.
JUDGE HANKINSON: One, the defendant solicited one or more persons to commit first-degree murder. Two, during the solicitation, the defendant commanded, encouraged, hired, or requested one or more persons to engage in specific conduct which would constitute the commission of first-degree murder. It is not necessary that the defendant did any act in furtherance of the offense solicited. To solicit means to ask earnestly or to try to induce another person to engage in specific conduct.
JUDGE HANKINSON: Voluntary intoxication resulting from the use of alcohol or a controlled substance is not a defense to a crime.
JUDGE HANKINSON: Evidence of a defendant's voluntary intoxication may not be taken into consideration to show that he or she lacked the specific intent to commit any crime.
JUDGE HANKINSON: A person is voluntarily intoxicated if he or she knowingly consumed a substance that he or she knew or should have known could cause intoxication.
JUDGE HANKINSON: The defendants have entered a plea of not guilty.
JUDGE HANKINSON: This means you must presume or believe the defendants are innocent.
JUDGE HANKINSON: The presumption stays with the defendant as to each material allegation in the information and indictment through each stage of the trial, unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. To overcome the defendants' presumption of innocence, the state has the burden of proving the crimes with which the defendants are charged were committed and the defendants are the individuals who committed the crime.
JUDGE HANKINSON: The defendants are not required to present evidence or prove anything.
JUDGE HANKINSON: Whenever the words reasonable doubt are used, you must consider the following. A reasonable doubt is not a mere possible doubt, a speculative, imaginary, or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if after carefully considering, comparing, and weighing all the evidence there is not an abiding conviction of guilt, or if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendants not guilty, because the doubt is reasonable. It is to the evidence introduced in this trial, and to it alone, that you are to look for that proof. A reasonable doubt as to the guilt of the defendants may arise from the evidence, conflict in the evidence, or the lack of evidence.
JUDGE HANKINSON: If you have a reasonable doubt, you should find the defendants not guilty.
JUDGE HANKINSON: If you have no reasonable doubt, you should find the defendants guilty.
JUDGE HANKINSON: It is up to you to decide what evidence is reliable.
JUDGE HANKINSON: You should use your common sense in deciding which is the best evidence and which evidence should not be relied upon in considering your verdict. You may find some of the evidence not reliable or less reliable than other evidence. You should consider how the witnesses acted as well as what they said.
JUDGE HANKINSON: Some things you should consider are: Did the witness seem to have an opportunity to see and know the things about which the witness testified?
JUDGE HANKINSON: Did the witness seem to have an accurate memory?
JUDGE HANKINSON: Was the witness honest and straightforward in answering the attorneys' questions?
JUDGE HANKINSON: Did the witness have some interest in how the case should be decided?
JUDGE HANKINSON: Does the witness's testimony agree with other testimony and other evidence in the case?
JUDGE HANKINSON: Excuse me.
JUDGE HANKINSON: Has the witness been offered or received any money, preferred treatment, or other benefit in order to get the witness to testify?
JUDGE HANKINSON: Had any pressure or threat been used against the witness that affected the truth of the witness's testimony? Did the witness at some other time make a statement that is inconsistent with the testimony he or she gave in court? Has the witness been convicted of a felony? Whether the State has met its burden of proof does not depend upon the number of witnesses it has called or upon the number of exhibits it has offered, but instead upon the nature and quality of the evidence presented. The fact that a witness is employed in law enforcement does not mean that his or her testimony deserves more or less consideration than that of any other witness. Expert witnesses are like other witnesses, with one exception: the law permits an expert witness to give his or her opinion. However, an expert's opinion is reliable only when given on a subject about which you believe him or her to be an expert. Like other witnesses, you may believe or disbelieve all or any part of an expert's testimony. You must consider the testimony of some witnesses with more caution than others. For example, a witness who claims to have helped the defendant commit a crime, has been promised immunity from prosecution, or hopes to gain more favorable treatment in his or her own case may have a reason to make a false statement in order to strike a good bargain with the State. This is particularly true when there is no other evidence tending to agree with what the witness says about the defendant.
JUDGE HANKINSON: So while a witness of that kind may be entirely truthful when testifying, you should consider his or her testimony with more caution than the testimony of other witnesses.
JUDGE HANKINSON: However, if the testimony of such a witness convinces you beyond a reasonable doubt of the defendant's guilt, or the other evidence in the case does so, then you should find the defendant guilty.
JUDGE HANKINSON: One of the defendants has become a witness.
JUDGE HANKINSON: You should apply the same rules to consideration of her testimony that you apply to the testimony of the other witnesses. It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom.
JUDGE HANKINSON: The witness should not be discredited by talking to a lawyer about his or her testimony.
JUDGE HANKINSON: You may rely upon your own conclusion about the credibility of any witness.
JUDGE HANKINSON: A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness. The Constitution requires the State to prove its accusations against the defendants. It is not necessary for the defendants to disprove anything, nor are the defendants required to prove his or her innocence.
JUDGE HANKINSON: It is up to the State to prove the defendants' guilt by evidence.
JUDGE HANKINSON: One of the defendants exercised a fundamental right by choosing not to be a witness in this case. You must not view this as an admission of guilt or be influenced in any way by his decision.
JUDGE HANKINSON: No juror should ever be concerned that the defendant did or did not take the witness stand to give testimony in the case.
JUDGE HANKINSON: A statement claimed to have been made by one of the defendants outside of court has been placed before you. Such a statement should always be considered with caution and be weighed with great care to make certain it was freely and voluntarily made. Therefore, you must determine from the evidence that the defendant's alleged statement was knowingly, voluntarily, and freely made. In making this determination, you should consider the total circumstances, including but not limited to whether, when the defendant made the statement, he had been threatened in order to get him to make it, and whether anyone had promised him anything in order to get him to make it. If you conclude the defendant's out-of-court statement was not freely and voluntarily made, you should disregard it.
JUDGE HANKINSON: These are some general rules that apply to your discussion.
JUDGE HANKINSON: You must follow these rules in order to return a lawful verdict. You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice.
JUDGE HANKINSON: There is no reason for failing to follow the law in this case.
JUDGE HANKINSON: All of us are depending upon you to make a wise and legal decision in this matter.
JUDGE HANKINSON: This case must be decided only upon the evidence that you have heard from the testimony of the witnesses and have seen in the form of the exhibits and evidence and these instructions.
JUDGE HANKINSON: This case must not be decided for or against anyone because you feel sorry for anyone or angry at anyone.
JUDGE HANKINSON: Remember, the lawyers are not on trial.
JUDGE HANKINSON: Your feelings about them should not influence your decision in this case.
JUDGE HANKINSON: Your duty is to determine if the defendants have been proven guilty or not in accord with the law.
JUDGE HANKINSON: Whatever verdict you render must be unanimous. That is, each juror must agree to the same verdict.
JUDGE HANKINSON: The jury is not to discuss any question that a juror wrote that was not asked by the court, and must not hold that against either party.
JUDGE HANKINSON: Your verdict should not be influenced by feelings of prejudice, bias, or sympathy. Your verdict must be based on the evidence and on the law contained in these instructions.
JUDGE HANKINSON: Deciding a verdict is exclusively your job. I cannot participate in that decision in any way.
JUDGE HANKINSON: Please disregard anything I may have said or done that made you think I preferred one verdict over another.
JUDGE HANKINSON: A separate crime is charged against each defendant in each count. The defendants have been tried together.
JUDGE HANKINSON: However, the charges against each defendant and the evidence applicable to him or her must be considered separately. A finding of guilty or not guilty as to one of the defendants must not affect your verdict as to the other defendant or other crimes charged.
JUDGE HANKINSON: You may find the defendant guilty as charged, or guilty of such lesser included crime as the evidence may justify, or not guilty.
JUDGE HANKINSON: If you return a verdict of guilty, it should be for the highest offense that has been proven beyond a reasonable doubt. Now, if you find that no offense has been proven beyond a reasonable doubt, then, of course, your verdict must be not guilty.
JUDGE HANKINSON: The verdict must be unanimous. That is, all of you must agree to the same verdict.
JUDGE HANKINSON: Only one verdict may be returned as to each crime charged. The verdict must be in writing, and for your convenience, a necessary verdict form has been prepared for you. There are two verdict forms.
JUDGE HANKINSON: All right, so everybody should have two verdict forms. Everybody has two verdict forms.
JUDGE HANKINSON: Let's start with the one titled Sigfredo Garcia.
JUDGE HANKINSON: There's a slight difference in the verdict form, so I'll make sure to point that out.
JUDGE HANKINSON: I think it's pretty self-explanatory, but let's look at the verdict form. As to count one, you have four choices: either A, guilty of first-degree murder; B, guilty of second-degree murder; C, guilty of the lesser, manslaughter; or not guilty. You need to make a unanimous decision as to which of those verdicts you decide as to count one. As to Mr. Garcia, you'll see there's an interrogatory there. If you choose either first-degree murder or not guilty, you don't have to worry about interrogatories. But if you choose second-degree murder, you need to answer the interrogatory: during the commission of the offense designated above, the defendant discharged the firearm causing great bodily harm or death, discharged the firearm, actually possessed a firearm, or did none of the above. You would work from the top and work down. You would check the most serious option proven — it starts at the top with the most serious. If you choose B or C — and that may be slightly confusing — if you choose B, but if you choose B or C, you need to answer the next interrogatory: during the course of the offense designated above, the defendant used a firearm, yes or no. That would be as to count one.
JUDGE HANKINSON: As to count two, it's fairly straightforward.
JUDGE HANKINSON: The defendant is guilty of conspiracy to commit first-degree murder, or not guilty. You would sign the unanimous choice for the jury. As to count three, the defendant's guilty of solicitation to commit first-degree murder, or the defendant's not guilty. You would check the unanimous decision of the jury. It would be signed and dated by the foreperson. The foreperson will bring the verdict form back to the courtroom after you've completed your deliberations. Sometimes I get a question from the jury as to whether everybody has to sign the verdict form. No — the foreperson signs on behalf of the jury. Now let's look at Ms. Magbanua's verdict form. It's essentially the same, except there are no interrogatories. You don't have to worry about any interrogatories as to Ms. Magbanua. So you have, as to count one, either A, first-degree murder; B, second-degree murder; C, manslaughter; D, not guilty. Again, you would check the one option the jury unanimously agrees upon.
JUDGE HANKINSON: In count two, it's either conspiracy to commit first-degree murder or not guilty.
JUDGE HANKINSON: And on count three, it's the same: either guilty of solicitation to commit first-degree murder, or not guilty. To be dated and signed by the foreperson. So when you get through, you should have three checkmarks on the verdict form there, and it should be signed and dated.
JUDGE HANKINSON: I'll give my concluding remarks after the attorneys have made their closing arguments.
JUDGE HANKINSON: The attorneys will now present their final arguments. Please remember that what the attorneys say is not evidence or your instructions on the law. However, do listen closely to their arguments. They are intended to aid you in understanding the case.
JUDGE HANKINSON: Each side will have equal time, but the State is entitled to divide this time between an opening argument and a rebuttal argument after the defendants have spoken. So the order will be: the State will make an argument, Garcia will make an argument, Magbanua will make an argument, and then the State has the opportunity to make a rebuttal argument at the end. Ms. Cappleman.
MS. CAPPLEMAN: Members of the jury, good morning.
MS. CAPPLEMAN: Modern technology at play.
MS. CAPPLEMAN: Backwards is fine.
MS. CAPPLEMAN: Okay.
MS. CAPPLEMAN: Great.
MS. CAPPLEMAN: Thank you.
MS. CAPPLEMAN: So, come back.
MS. CAPPLEMAN: Down is up.
MS. CAPPLEMAN: All right. Thanks.
MS. CAPPLEMAN: All right. Members of the jury.
MS. CAPPLEMAN: The evidence has shown that on July 18, 2014, this community suffered a blow when a revered law professor, colleague, son, father, brother, and friend was gunned down in broad daylight in his own home.
MS. CAPPLEMAN: What enemy or enemies had Mr. Markel made that set into motion such a brutal act?
MS. CAPPLEMAN: The answer: his own family.
MS. CAPPLEMAN: What offense had Mr. Markel committed against these people? Wanting to be a good father. Refusing to let his children be taken away from him. You've heard a lot about bits and pieces versus the full picture.
MS. CAPPLEMAN: This is the full picture, ladies and gentlemen of the jury. And this is what all the little bits and pieces over the last couple weeks have added up to.
MS. CAPPLEMAN: What was the motive for this murder?
MS. CAPPLEMAN: Wendi Adelson characterized her divorce as unpleasant. Unpleasant. But the evidence shows that that is a severe understatement.
MS. CAPPLEMAN: When they separated in 2012, Wendi Adelson left with the children while Dr. Markel was away on a business trip.
MS. CAPPLEMAN: This is from State 75, quote, "The wife was gone, the boys were gone, the house was half plundered, the Schwab accounts had been raided, and divorce papers had been left on the bed. Most importantly, there was no indication of where the wife and children were."
MS. CAPPLEMAN: Worse, for the first 15 days of the separation, wife refused to give husband any address or phone number for where she lived with the children.
MS. CAPPLEMAN: On September 25, 2012, wife finally answered husband's and his counsel's plea for a proper address, but she gave him a false address that wasn't corrected until four weeks later, when Markel came home from a business trip and found divorce papers on the bed. They demanded the majority of time sharing with the kids, temporary and permanent child support, temporary bridge-the-gap, lump sum, and durational alimony, and the wife's attorney's fees and costs. In Markel's response, he said that he is, quote, "grieved that the wife has filed for dissolution of the party's marriage, and it is his hope, belief, and desire that the marriage can be saved." Well, we know it couldn't. In January of 2013, Wendi Adelson filed a motion to allow her and her children to relocate to South Florida. They were ages two and three years old at that time. As one basis for this request, Wendi Adelson cites that the wife's parents reside in Coral Springs and the wife's brother resides 20 minutes away.
MS. CAPPLEMAN: "The children are very close to the wife's parents."
MS. CAPPLEMAN: Then she proposes a 60-40 time sharing schedule in which Mr. Markel will be required to travel from Tallahassee to South Florida every time he wants to see his children.
MS. CAPPLEMAN: Quote, "The wife proposes that during a school year the husband come to South Florida every other Saturday through Tuesday, and in the off week, come for at least two days to see the children."
MS. CAPPLEMAN: As another basis for the motion for relocation, Wendi alleges that, quote, "The husband has also created a hostile work environment for the wife at FSU School of Law by telling the administration and their joint colleagues that the wife has stolen from him, that she has mental health issues, isolating the wife in Tallahassee's small legal community and further limiting the wife's career prospects in the area." Now remember what Wendi Adelson told you when she was on that stand. She was just fine to stay in Tallahassee. She liked it here in Tallahassee. And Markel's answer: he indicates that he's seeking continued equal time sharing in Tallahassee. He seeks sole parental responsibility on issues related to education, religion, and the medical upbringing of these children. And as y'all learned through the course of this evidence, you learned how important it was for Mr. Markel to be involved in the kids' education and their religious upbringing.
MS. CAPPLEMAN: Markel's dedication in these areas is highlighted by the fact that the very last thing he did after he dropped his kids off and worked out was make a phone call to Stuart Schlazer, somebody that he was reaching out to to try to get information about the kids' schooling prospects.
MS. CAPPLEMAN: In addition, you'll recall Wendi Adelson's testimony that Mr. Markel was devout in his beliefs and was adamant that his boys should be raised in an environment that observed Jewish traditions and was committed to the Jewish faith.
MS. CAPPLEMAN: Quote, "Once examined in context, the sole reason the wife wishes to relocate with the party's minor children is so she can be closer to her parents. The wife has done nothing to facilitate the children's connection to the Jewish community since the separation."
MS. CAPPLEMAN: "She not only introduced them to a non-kosher diet since the separation, she not only introduced them to, but she on her weekends refused to allow the husband to continue the pre-separation practice they had had of the children attending synagogue." In conjunction with the filings from the divorce, you have these emails that were introduced as State's 80.
MS. CAPPLEMAN: This email is from Donna Adelson to Wendi Adelson. It's dated May 3rd, 2013.
MS. CAPPLEMAN: "However, Gibbers has made his divorce a full-time job to attempt to get what he's always gotten: his way. The most important part of your divorce is" — all caps — "RELOCATION. I sincerely hope your attorney understands that this is non-negotiable. Those trips need to be coordinated with a very angry man. Danny thinks he's very important, and as always, he always thinks his needs come first."
MS. CAPPLEMAN: "However, hot temper and verbal abuse is what you need to emphasize — that you suffered under his reign."
MS. CAPPLEMAN: "Narcissistic Personality Disorder causes major problems in a marriage, especially when one believes that because he attended Harvard undergrad and Harvard Law, he's clearly better and smarter than anyone else, including you — which technically is correct."
MS. CAPPLEMAN: "It's super important for the judge to get the message that this guy's a big bully. I know she'll be able to read that when you submit copies of emails he sent you. He feels if he said something, that's it. Well, that's not it. You were in fear of his temper, and so you did not want to reveal your address." That's why she kept the kids away — how many other weeks? "Mr. Markel has become a religious zealot over the last few years since the birth of our first son, taking him to synagogue with him as an infant so that he can absorb the music and prayers. What's going to happen in June when he wants to go to three different conferences? Don't let him go. If you do, you're enabling and facilitating your stay in Tallahassee. Another bribe to get him to allow relocation should be the offer of plane tickets." This is the grandmother coaching Wendi — Wendi Adelson — on how to try to facilitate this relocation. On May 6, 2013, Dan Markel filed a motion to compel Wendi Adelson to honor an agreement they had regarding access to the children. In this document, Markel alleges the wife is engaged in a pattern of interfering with the husband's access to the children.
MS. CAPPLEMAN: Fast forward to June of 2013. There's an order denying Wendi's motion for relocation with prejudice. That means it cannot be raised again. She cannot move to South Florida with those children by court order. This is the summer of 2013 — the same timeframe that Wendi Adelson later tells Jeffrey Lacasse that her brother, Charlie Adelson, was looking into all options to resolve the relocation problem, including having Dan Markel killed.
MS. CAPPLEMAN: In May and July of 2013, there were two mediations conducted in this divorce, both of which resulted in an impasse.
MS. CAPPLEMAN: There's a quote from one of the filings that the wife is merely, quote, "stuck in Tallahassee until the husband decides the time is right for him to leave."
MS. CAPPLEMAN: "The wife and her affluent parents, who are bankrolling the wife's litigation so that they can enjoy closer access to the grandchildren."
MS. CAPPLEMAN: Again, an email. These are in chronological order. So this next email is dated Thursday, June 25, 2013. This one is from that donnaharvey@gmail.com address that both Harvey Adelson and Donna Adelson use, and it's signed "Love, Mom and Dad," and it's to Wendi Adelson. "Never, never, never give up. It's time for action. It's time to take control of your life and not let Gibbers think he just won anything by having you remain in Tallahassee. Let's show this F-blank-blank-blank what will make him absolutely miserable. You know his weak points: money, religion, control. You have five weeks before your court date. I know you have a job that keeps you very busy; however, the rest of your life — and consequently Dad's, mine, and yes, even Charlie's — will be affected by how well you can perform slash act between now and July 31st. You can be a good actress when you want to."
MS. CAPPLEMAN: "I've seen you in action."
MS. CAPPLEMAN: "You just need to put on the performance of your life."
MS. CAPPLEMAN: "Gibbers hasn't beaten the Adelson family yet."
MS. CAPPLEMAN: "You have a very strong family behind you. Just remember that."
MS. CAPPLEMAN: "Dad and I have done everything we could to try to help you for the last 10 months."
MS. CAPPLEMAN: "Now it's time to help yourself."
MS. CAPPLEMAN: "We believe that you will be able to make this happen if you can put these actions before everything else this month" — yada yada — "here's the plan of action."
MS. CAPPLEMAN: "Plans of action."
MS. CAPPLEMAN: "Number one: take a photo of the boys dressed nicely, standing at the front door or by the sign of a church in Tallahassee. Then change your Facebook status photo to this one so everyone will see this."
MS. CAPPLEMAN: "Perhaps a line under the photo with, quote, 'New beginnings in Tallahassee' might be nice."
MS. CAPPLEMAN: "Within minutes, Gibbers should either see this or will be getting calls from his friends' acquaintances about this." Hmm?
MS. CAPPLEMAN: How happy do you think he'll be?
MS. CAPPLEMAN: "Make arrangements to get the boys caught up with a private tutor — a teenage Catholic church member — who will come to the house and teach the young men about Jesus."
MS. CAPPLEMAN: "Number three: let Gibbers know that your children will be baptized in the Catholic Church, and you'll certainly invite him to the event. Let him know that the Catholic Church is a big part of your life now with the boys, and you'd like him to be a part of it. As long as he wants you to remain in Tallahassee, the boys will be involved with you in church-related activities and ceremonies."
MS. CAPPLEMAN: "Number four: summer camp."
MS. CAPPLEMAN: Don't worry about that one. "Number five: register for them for toddler classes at the church. I've looked into this" — Mom has looked into this — "and even if they don't go, we can show Gibbers that they are enrolled for the fall semester."
MS. CAPPLEMAN: "And you cannot tell anyone this is an act."
MS. CAPPLEMAN: "Somehow it will get back to him."
MS. CAPPLEMAN: "Take control from him."
MS. CAPPLEMAN: "Get to him psychologically."
MS. CAPPLEMAN: "He's going to want you to stop this."
MS. CAPPLEMAN: "Wendi, you've been through a difficult year."
MS. CAPPLEMAN: Yada yada. "Now you have one final opportunity to make him angry. We want him ticked off so he realizes that he could lose control over the kids."
MS. CAPPLEMAN: "We plan to make a financial offer to him to allow this relocation. You need to work this plan, and we'll help you through it, so that it may affect how much we will offer him."
MS. CAPPLEMAN: Maybe he'd be willing to let you relocate if he knew his children would attend a private Hebrew academy like Donna Klein in Boca. Or perhaps he'd like them to invite him to a Christmas party at their other Sunday school. I know you would never want to think that you didn't do absolutely everything you could to try to come down to your family. It's time for you to show us that you can put on the performance of your life in the next few weeks. This is not a normal amount of pressure for this thing to get done, right?
MS. CAPPLEMAN: Charlie brought up a good point.
MS. CAPPLEMAN: I'm not going to read it. You see it.
MS. CAPPLEMAN: Dress your kids up in Hitler youth uniforms.
MS. CAPPLEMAN: Take something from him.
MS. CAPPLEMAN: You need to take something from him in order to get him to negotiate it back.
MS. CAPPLEMAN: Take something that he wants. Pretend, pretend, pretend.
MS. CAPPLEMAN: All right, now the payoff. This payoff can put him at the point, blah, blah, blah, $4 million range.
MS. CAPPLEMAN: Point of this, they're willing to offer $1 million.
MS. CAPPLEMAN: We're planning on you, Charlie, and Dad and I going as high as equal parts in a $1 million offer to bribe Mr. Markel to give up his kids.
MS. CAPPLEMAN: On July 31st, 2013, the divorce between Dan Markel and Wendi Markel was made final. They reached an agreement just hours before the matter was scheduled to go to a trial.
MS. CAPPLEMAN: But litigation continued and even increased as both parties continued to file motions alleging the other was in violation of the divorce.
MS. CAPPLEMAN: On October 31st, 2013, Wendi Adelson filed a motion to enforce the marital settlement agreement. Five months before his murder, on February 14th, 2014. All right, February 14th, 2014, so five months before the murder, Mr. Markel files this particularly biting counter motion in which he reiterates his feelings about the way she left the relationship, talking about her abandoning the marital home, taking everything out of the home, leaving behind no address. He mentions that she took his stuff, including his tennis racket. He talks about family heirlooms and jewelry that was taken, hundreds of thousands of dollars in cash and equities. And then he talks about the frivolous petition that she filed and how false it was. He talks about how she's an attorney authorized to practice law by the Florida Bar, also a clinical professor of law at Florida State University.
MS. CAPPLEMAN: Despite her professional and legal obligations to act in a manner that reflects honesty, trustworthiness, and fitness to be a lawyer, and despite the oath that avers the correctness of the financial affidavit on pains of liability for perjury and criminal prosecution, former wife filed a false and misleading financial disclosure for him. He's accusing her of a crime. He's threatening to go after her bar card. He's accusing her of being unethical and of lying to the court.
MS. CAPPLEMAN: Specifically, he's alleging that her TIAA CREF account was not disclosed and that the failure to disclose it renders the settlement agreement null and void.
MS. CAPPLEMAN: He talks about how she's helped herself to all of this property.
MS. CAPPLEMAN: She has wealthy parents who placed her in a financial cocoon, and upon belief, by paying her legal fees, they allowed and encouraged her to take the most aggressive and unsubstantiated legal postures possible, because there would be no financial consequence for her doing so.
MS. CAPPLEMAN: Them's fighting words.
MS. CAPPLEMAN: It's clear that this was an extremely contentious divorce with high emotions and a lot at stake for both sides.
MS. CAPPLEMAN: Listen to part of this email from the Donna Harvey email address to Wendi Adelson dated February 18th, 2014.
MS. CAPPLEMAN: I think it's really important to get the parenting coordinator to either testify or be brought to deposition, perhaps by your attorney, so we can get her to request that Elvis — I don't know why we're calling him Elvis — be court-ordered for psychological testing. And just look at the title of the response and they're seeking sanctions against each other. Our motion for enforcement of MSA on parenting issues and motion for contempt and sanctions. On March 26, 2014 — March 26, 2014 — Mr. Markel files this motion alleging that the grandmother of these children, Donna Adelson, has disparaged him to the children. Quote, grandma says you're stupid, she says you're trying to take her sunshines away from her, and grandma says she hates you.
MS. CAPPLEMAN: Dan Markel is requesting the court to enjoin the former wife from allowing the maternal grandmother to have unsupervised time with the children, and to impose appropriate limitations to safeguard the children from being subjected to disparaging comments about their father. He is moving to preclude her from having contact with these kids unless she's supervised.
MS. CAPPLEMAN: How do you think that went over, based on what we know about Donna Adelson?
MS. CAPPLEMAN: And as we know, this issue never made it to hearing because there were several lawyer changes and other delays. And ultimately, Dan Markel was murdered. And guess what? Relocation was no longer a problem. Within 48 hours, Wendi and those kids had moved to South Florida, never to return to Tallahassee. The emails in State's Exhibit 80 shed some light on how the Adelson family responded, how involved they got in this divorce that their daughter was engaged in. The pleadings and allegations that Mr. Markel filed against Wendi and against her mother were very contentious. Obviously, there is a lot of bad blood.
MS. CAPPLEMAN: Maybe I'm getting excited and pushing buttons.
MS. CAPPLEMAN: Back in the summer of 2013, when Wendi Adelson's motion for relocation was initially denied, we know that Charlie had looked into having Dan Markel killed. But as the defense points out, Charlie didn't even know Katherine Magbanua at that time, and hence the murder did not happen at that time. When did Wendi Adelson mention to Jeffrey Lacasse that his brother had looked into getting this done a year ago?
MS. CAPPLEMAN: On July 13th, 2014. That's when she told Lacasse about this. Just five days before Dan Markel was killed.
MS. CAPPLEMAN: But the seed for this conspiracy had already been planted when Charlie had looked into committing the murder back during the summer of 2013.
MS. CAPPLEMAN: That was the time when the judge ruled against Wendi and the kids moving to South Florida. And after the relocation failed, fast forward to the next really significant event, which is it being on the line whether or not Donna Adelson is going to be permitted to have continued contact with these kids, that's unsupervised. Based on the emails we recovered, how do you think Donna took the news that gibbers was trying to police her contact with her own grandchildren? According to Donna Adelson, quote, something has to be done about this asshole. He hasn't beaten the Adelsons yet. But he was beating them, wasn't he? After paying for several lawyers and engaging in all these bitter legal battles, Wendi and the boys still were in Tallahassee. And as Wendi told Jeffrey Lacasse, she was never going to be able to move to South Florida unless something happened to Danny. And she was right. What happened after his murder? She moved to South Florida, and she systematically erased their father from these boys' lives. She changed their names from Markel to Adelson. Why? Because there was too much media attention with the name Markel in it. Wasn't there a lot of media attention with the name Adelson in it? And if that was really her reason, why drop the middle name that was in honor of the paternal ancestors?
MS. CAPPLEMAN: Why keep Dan Markel's parents away from the children for any other purpose other than to obliterate the memory of their father?
MS. CAPPLEMAN: So it's the State's theory.
MS. CAPPLEMAN: Let's see where we are here.
MS. CAPPLEMAN: Here's Wendi's trip from her residence down to the crime scene and then to the liquor store where she purchases Bulleit whiskey, all the way back up to Mosaic where she engages in a lunch date. When she pulls up to the crime scene, there's where she could have gone to get liquor. When she pulls up to the crime scene, she doesn't get out, she doesn't ask any questions, she doesn't make any phone calls, she doesn't call 911. This is the man that has her children. She doesn't call the daycare to find out, are my kids okay? Nothing. And then she told you guys that she just observed the crime scene tape on her way by Centerville Road, which is not possible. You could not see the crime scene tape from Centerville Road. And as you know from the testimony of Officer Brannon and her prior inconsistent statement in her interview, she did go down to that crime scene.
MS. CAPPLEMAN: It's the State's theory that there are other people, people other than those who have been charged, people other than the two folks that are on trial here today that you all are concerned about. And these people also bear responsibility for the murder of Professor Markel. Although you are not being asked to decide the guilt of anybody on that top row, and Mr. Rivera has already pled, it's relevant for you to understand the roles that all of these people played, the motive for this crime, in order to make a determination about the guilt of the two folks that are on trial here and for you to decide here today.
MS. CAPPLEMAN: Do these two defendants fit into this conspiracy?
MS. CAPPLEMAN: If so, how?
MS. CAPPLEMAN: If this is done out of necessity, it's not a desperation thing. I want you all to see the whole picture.
MS. CAPPLEMAN: That being said, it's natural for you to wonder what's going on with these other people.
MS. CAPPLEMAN: When and how will they be charged?
MS. CAPPLEMAN: All of those things are natural things to think about and wonder, but not okay to affect your decision in this case, as you by your oath must render a verdict based on the evidence and the law in this case as to these two defendants individually. Much has been made regarding my personal feelings about charging the Adelsons.
MS. CAPPLEMAN: That should not affect your verdict at all, what my personal feelings are. You probably don't know what they are. Maybe you think I'm eager to do this again in the near future.
MS. CAPPLEMAN: But it doesn't matter what I think. What matters is the evidence and the law that's before you as it pertains to these two defendants.
MS. CAPPLEMAN: As we talked about in jury selection, you've been sworn as the jury for these defendants and must make a wise and legal decision about their roles in this larger plot.
MS. CAPPLEMAN: Anyone else is for another day or for another jury.
MS. CAPPLEMAN: But to understand where the two fit in, you have to understand the motives and events that led up to them being hired to commit the crime.
MS. CAPPLEMAN: So the evidence that you've heard concerning the Adelsons is necessary.
MS. CAPPLEMAN: While we're on the topic of the Adelsons, it's worth pointing out that absent their involvement would be giant coincidences. So was there a plan to frame Jeffrey Lacasse for this? That was one thing. Wendi Adelson broke up with him the week before the murder.
MS. CAPPLEMAN: She knew he had plans to leave town, like at the exact time that Dan Markel ended up being killed, and then suggested his name to law enforcement as a bitter ex-boyfriend who might have had an ax to grind.
MS. CAPPLEMAN: Luckily, he left a day early, so he had a great alibi.
MS. CAPPLEMAN: What about this thing with the TV?
MS. CAPPLEMAN: Charlie Adelson gets Wendi Adelson a TV as a divorce present as a cheaper alternative to hiring a hitman.
MS. CAPPLEMAN: Then the same TV is Wendi Adelson's alibi for the time that her husband was murdered.
MS. CAPPLEMAN: A service appointment that her mother set up for her from South Florida, and then on the wire when Donna is talking about, "Well, that didn't come in, never mind, strike that."
MS. CAPPLEMAN: And what about Wendi Adelson going completely out of her way — that slide that I just showed you — to visit the crime scene when the crime scene tape is up? That's not a shortcut to where she was going. That liquor store is not on the way to where she was going.
MS. CAPPLEMAN: Why doesn't she stop to ask what's going on when she sees all these emergency vehicles at her children's father's home?
MS. CAPPLEMAN: What about the evidence that Katherine Magbanua already knew that the crime was done when she got that phone call from Sigfredo Garcia?
MS. CAPPLEMAN: Remember the testimony that the first call that either Mr. Rivera or Mr. Garcia made after the murder was done was to Katherine Magbanua. And what did Garcia say?
MS. CAPPLEMAN: "It's done." And what did Katherine Magbanua say? "I know."
MS. CAPPLEMAN: How did she know?
MS. CAPPLEMAN: I cannot answer that question.
MS. CAPPLEMAN: Possibly when somebody had to tell her.
MS. CAPPLEMAN: Or perhaps she meant it figuratively. Like, "I'm waiting by the phone for this thing to get done, and when I see the phone ringing at you, I knew it was done." Don't know the answer.
MS. CAPPLEMAN: Here's Katherine Magbanua and Wendi Adelson, taken on the beach just outside her parents' condo on June 15th, 2014. So this is 10 days after the first botched murder trip and about a month before the actual murder. Rivera says that Katherine Magbanua told them the murder had to be done on July 18th. Why did it have to get done on July 18th? Because Dan Markel was planning to leave town the next day — and this is a fact that has been confirmed by Wendi Adelson.
MS. CAPPLEMAN: Somebody with access to Mr. Markel's schedule — a.k.a. some Adelson — had to have relayed this information to Ms. Magbanua for her to know. How would Luis Rivera know to say that? That's not in the discovery.
MS. CAPPLEMAN: How would he know to say that they had to get it done because Mr. Markel was leaving town the next day?
MS. CAPPLEMAN: Let's talk a little bit about Mr. Rivera.
MS. CAPPLEMAN: Mr. Rivera is not my best friend from childhood.
MS. CAPPLEMAN: Mr. Rivera is not the guy that my child's father considers a brother and a best friend. He is not the person that I hired to do the murder. I did not get to pick Luis Rivera.
MS. CAPPLEMAN: Rivera is here because these two defendants chose to do a crime with him, and he chose — yes, to save his own butt — to do a deal. He chose to come forward with the truth in exchange for a deal.
MS. CAPPLEMAN: He is a bad dude.
MS. CAPPLEMAN: You've heard lots of stuff to corroborate that, and I wouldn't try to dispute that. He is a bad dude. That's why they picked him to come assist with this. But his Latin King status has nothing to do with the murder, other than it makes him a bad dude and a good candidate as somebody to recruit to do a killing.
MS. CAPPLEMAN: You have no evidence of any connection between this Latin King specter that's been raised for you and the evidence of this particular crime.
MS. CAPPLEMAN: According to the defense, his deal was the deal of the century to give some testimony that I or someone else spoon-fed to him. What evidence do you have that any information was spoon-fed to him?
MS. CAPPLEMAN: The defense wants to say he was spoon-fed, but then they also want to say he was terrible and inconsistent and full of it.
MS. CAPPLEMAN: How can it be both ways? "I was spoon-fed, but I did a terrible job of it."
MS. CAPPLEMAN: There is no evidence that anyone told Mr. Rivera what to say in this case. His testimony is what it is. If there's inconsistencies in it, if there's inaccurate facts in it, that's what it is.
MS. CAPPLEMAN: The actual only condition of Mr. Rivera's cooperation agreement in this case is to tell what he knows. Tell the truth. If I'm so desperate to get the Adelsons and I'm spoon-feeding Rivera, why wouldn't I just spoon-feed him to tell me the Adelsons did it? He was hired by Sigfredo Garcia, his best friend from childhood, and Sigfredo Garcia was hired by Katherine Magbanua, his child's mother, to do a murder in Tallahassee to assist her other boyfriend, Charlie Adelson.
MS. CAPPLEMAN: And he's just telling you what you already know. You don't have to rely on Luis Rivera.
MS. CAPPLEMAN: The whole case doesn't hinge on him, because he's telling you what you already know from the evidence — all the circumstantial evidence in the case. And he's the direct evidence, the linchpin that holds it all together and that reveals all the corroboration that you need to make a decision in this case.
MS. CAPPLEMAN: In jury selection, we talked about the different types of evidence — you know, is it direct, is it circumstantial? And what about inconsistencies? We talked about that too. And Mr. Rivera has given now, I think, ten statements in this case over a three-year period, about events that happened over five years ago now. So there are going to be inconsistencies, and I'm sure the defense will talk about those. Only you can evaluate these inconsistencies and how much importance to give them. I'm not telling you to ignore them. I want you to look at them, evaluate them, and you make a decision. Lawyers don't get to make a decision as to whether or not these things are important. Did he have an opportunity to see and know the things about which he testified?
MS. CAPPLEMAN: Not a lawyer telling you what's important and what's not.
MS. CAPPLEMAN: So did he seem to have an opportunity?
MS. CAPPLEMAN: Yeah, he was there.
MS. CAPPLEMAN: How could he have known that Rivera shot a hole in the Prius unless he was there? I'm sorry — Garcia fired a hole in the passenger floorboard of the Prius, unless he was there.
MS. CAPPLEMAN: He saw it. The fact wasn't listed in a media report. The fact wasn't known to law enforcement.
MS. CAPPLEMAN: Couldn't have known it unless he was there.
MS. CAPPLEMAN: How could he have known that Dan Markel was scheduled to leave town? A fact that Wendi confirms.
MS. CAPPLEMAN: Because Magbanua told he and Garcia that they had to get it done for that reason.
MS. CAPPLEMAN: Rivera testified that Magbanua hired Garcia to kill Dan Markel, and that Garcia hired him to assist in the murder, and that Katherine Magbanua was responsible for getting the money and for paying them once the job was done. That's your principal instruction.
MS. CAPPLEMAN: You will notice in this ATM video that was taken at 6:46 p.m. on the day of the murder in Pembroke Pines, Florida — consistent with the two of them having traveled south after committing the murder — you will notice that Rivera is in the dark shirt in the driver's seat, and that Garcia is in a white shirt on the passenger side. This is consistent with their positions in the vehicle on the bus video, which was taken just moments after the homicide. Rivera says Garcia was the shooter. You don't have to rely on Rivera for that, because the evidence corroborates that. You're not going to be the shooter and the getaway driver. The passenger is in a white shirt. The evidence at the crime scene is consistent with a very accurate, close-range shot by a taller individual. Accurate and close range means not gangster style. It means regular style, consistent with a taller shooter.
MS. CAPPLEMAN: Was it accurate?
MS. CAPPLEMAN: Yes, it was.
MS. CAPPLEMAN: Right between the eyes.
MS. CAPPLEMAN: What evidence corroborates what Rivera says?
MS. CAPPLEMAN: Mr. Geiger heard a gunshot.
MS. CAPPLEMAN: He got up and he looked out his window, and he saw a Prius — a light-colored Prius — pulling out of his neighbor's driveway.
MS. CAPPLEMAN: Prius ultimately leads back to Mr. Rivera and Mr. Garcia. Both of their name — well, Rivera's name and Garcia's number are both on the rental contract for that Prius. Let's review how we got from this image where Mr. Geiger looks out his window to the Prius. All right, so we got the surveillance video at Premier Gym, which shows the Prius stalking the victim. This — This bus video — some of it taken shortly before the murder and some of it taken right after the murder — showing the same type of vehicle.
MS. CAPPLEMAN: Again, you'll notice the white shirt is in the passenger side, dark shirt is the driver.
MS. CAPPLEMAN: The tower dump from Premier Gym shows a phone number that was linked to Harvey Adelson, and that on July 1st, 2014, Sigfredo Garcia made one unanswered call to Harvey Adelson. And that's how — that fact is how, that cross-reference is how — we managed to pull his number and identify him out of all the data that came out of the tower dump from Premier Gym.
MS. CAPPLEMAN: Look at the call frequency.
MS. CAPPLEMAN: Who does Mr. Rivera — who does Mr. Garcia call frequently? Luis Rivera.
MS. CAPPLEMAN: And guess who else is also on the tower dump? Luis Rivera. You'll see the phones traveling. We've got evidence to corroborate their phones — and when they left, when they arrived. You've got toll plaza information that corroborates or coincides with the phone, so that we know exactly when that vehicle was traveling through, when that transponder passed through that particular toll booth. And we were able to learn from that that this particular Prius — yes, Sir, that this Prius was assigned to Schwartz Hybrid Rental Car Place.
MS. CAPPLEMAN: So Schwartz Hybrid Rental Car Place basically is the owner of this transponder.
MS. CAPPLEMAN: They have Priuses that this transponder could potentially be attached to. When we go to Mr. Schwartz, Mr. Schwartz says, yes, that transponder was in fact affixed to a green Prius.
MS. CAPPLEMAN: That's how we put the Prius — that's how we connect the Prius that Mr. Geiger initially saw fleeing the crime scene and tie it to the rental contract, which has Mr. Rivera's name and his number, and Mr.
MS. CAPPLEMAN: Garcia's number listed under "brother."
MS. CAPPLEMAN: Chadrick Nobles also puts both men on both trips.
MS. CAPPLEMAN: He talks about the two having car trouble on the second trip. Well, they'd had car trouble on both trips, but the second trip is when Mr. Garcia repairs the hose on the Prius. We later learned from Mr. Rivera's proffer how the hole got there. We go back to the Prius and confirm — yes, in fact, the hole is in the passenger side floorboard, the hole did damage the fuel line as Mr. Rivera indicated, and the fix that Mr. Garcia put on the vehicle is still there. This would be a good stopping point, Your Honor.
JUDGE HANKINSON: All right. Why don't we take 15 minutes. Just leave your notes and instructions where they are.
JUDGE HANKINSON: I did notice, as I was reading, a couple of mistakes in the instructions. The only one of substance, I think, is in the aggravation-of-a-felony instruction, the second paragraph.
JUDGE HANKINSON: I'll be sending my judicial assistant in with corrected instructions, and she's emailed those to you, so you'll get a chance. We'll take 15 minutes.
MS. CAPPLEMAN: I know you guys enjoyed Corbitt 1, 2, 3, 4, and 5, so I want to take a few minutes to review the evidence that we learned from the phones. It's dry stuff, but it's super important stuff to this case. I want to talk about the June trip first. So on June 2nd, the first trip car was rented by Garcia.
MS. CAPPLEMAN: At that time, Ms. Magbanua's phone records are consistent with her leaving her residence in North Bay Village.
MS. CAPPLEMAN: Oh, this clicker's amazing. All right. New clicker. Clicker-gate is concluded.
MS. CAPPLEMAN: All right. So at the time that this first car was rented for the first trip by Mr. Garcia, Katherine Magbanua says, "I never went to the rental place," which was Comfort Rental Car — but her phone records are consistent with her leaving her residence at North Bay Village, going to Comfort Rental Car, remaining there during the time that the rental was occurring, and then returning back to her residence. When she's at the rental car place she gets a call from Charlie Adelson, and then on her trip back from the rental car place she talks to Charlie Adelson for 25 minutes. It should be noted that Mr. Rivera is nowhere around — he's on the other side of town when this car was rented. We know from the rental records that Garcia trades that car out at some point, possibly because he got the ticket in the first one, and then we know that they used that second car, after he made the trade-out, the Sonata, to do the June trip to Tallahassee.
MS. CAPPLEMAN: Rivera's phone shows us an idea of the route they traveled along on their first trip to Tallahassee on June 5, 2014.
MS. CAPPLEMAN: You don't see orange dots on here because we don't have any location information — the provider wasn't able to give us any location information for June at all for Mr. Garcia. So it doesn't mean he wasn't there; there's just no phone location information for him at all for this time period. But we do know that he rented the car for the trip. The car that he rented did get the ticket — well, the car didn't get the ticket. Mr. Rivera got the ticket in Gainesville, consistent with these blue dots. And we know that both Rivera and Garcia were seen in Tallahassee on that first trip, according to Luis Rivera and Chadrick Nobles — remember him, believe it. So this is a slide where the GPS on the Comfort Rental Car pinged the vehicle, so we know the location of that first vehicle, June trip, on June 5th, 2014, at 3:17 p.m. It was pinging very near the Trescott Drive residence of Mr. Markel. So the phone gives us an idea of what they were up to, showing that upon arriving in Tallahassee, they're in the area of the Budget Inn.
MS. CAPPLEMAN: Then the next morning, they're in the area of Trescott Drive, consistent with scouting out the Markel residence, as Mr. Rivera indicates they did that day.
MS. CAPPLEMAN: Then Rivera returns to Miami — you see his phone traveling along the route back to Miami, arriving back in the early morning hours of June 6, 2014.
MS. CAPPLEMAN: So it was a one-night stay in Tallahassee. They drove up, they did the scouting, it didn't work out — they couldn't find him, or he wasn't alone, or whatever; they couldn't get the job done, and they returned back to Miami.
MS. CAPPLEMAN: The GPS data on the vehicle is consistent with that.
MS. CAPPLEMAN: And then this is going to be a slide which indicates the Hyundai GPS return.
MS. CAPPLEMAN: Okay. So on June 6th, after Garcia and Rivera returned from the first trip to Tallahassee, Katherine Magbanua's phone is consistent with going to return the rental car. So she's consistent with going to pick it up and also going to return it. So we have the rental car consistent with being at her residence here on 6/6 of '14 at 8:48 a.m., and then we have her phone consistent with being at the rental car place when the car was returned. Again, Rivera is nowhere near the Comfort Rental Car when that car's returned. Garcia is, and Magbanua is.
MS. CAPPLEMAN: This slide shows you a summary of all the communications between Magbanua and Garcia during this first June trip.
MS. CAPPLEMAN: There was some testimony about them talking during the trip, and this gives you an idea of every single communication that occurred between them, to corroborate the possibility that those statements were in fact made. All right.
MS. CAPPLEMAN: I want to talk about phone events leading up to the July trip. So we're leaving the June trip; we're going to the events prior to the July trip. This slide shows phone activity the night before the Prius rental. So July 14th, there is some text communication on the iCloud between Mr. Adelson and Ms. Magbanua suggesting that they're going to get dinner together that night, and then the phone evidence indicates that Mr. Adelson picked Ms. Magbanua up and they did go out to eat. Following that dinner date, there are multiple communications between Magbanua and Garcia from midnight to 2 a.m. The next morning, July 15th, Mr. Garcia calls Comfort Rental Car, which is the same place that that first car was rented from. So that's significant just in thinking of what they might have been up to — thinking about renting a second vehicle.
MS. CAPPLEMAN: But ultimately Comfort is not the rental place that is used for the second trip. They instead go to the Hybrid Save Gas place, which is where Rivera rents the Prius.
MS. CAPPLEMAN: During the time of the rental, the phones are consistent with both Garcia and Rivera being present for the rental of the Prius, and at the time that the Prius is rented, Magbanua is communicating first with Charlie Adelson and then with Sigfredo Garcia.
MS. CAPPLEMAN: And there's our rental contract that includes Mr. Rivera's information as well as Mr. Garcia's number listed at the top as "brother."
MS. CAPPLEMAN: All right, so the Prius is rented. They don't leave immediately for Tallahassee.
MS. CAPPLEMAN: You'll see — okay, so this is a slide consistent with the Prius GPS. So the Prius rental company is pinging the vehicle, which they do every 24, 25 hours to verify where the vehicle is, and that pings at 10:25 p.m. on July 15th, and that's consistent with being at Ms. Magbanua's residence.
MS. CAPPLEMAN: All right, now we have the July trip. So on this one, we have location information for both Mr. Garcia's phone and Mr. Rivera's phone. So you can see these dots are events where their phones are communicating with towers on the way up to Tallahassee, consistent with them leaving and arriving in Tallahassee at about Here's the toll plaza. So when they left Miami, they went through the toll plaza eastbound on Alligator Alley at 2:18 p.m. So I think the ticket was at like 9:30, and then they arrived in Tallahassee around 11:30 or noon.
MS. CAPPLEMAN: Here's a GPS ping showing the vehicle on the way to Tallahassee, westbound on I-10, and that is at 11:28 p.m. And here is the Budget Inn receipt where Mr. Rivera and Mr. Garcia stayed their first night in Tallahassee on the July trip.
MS. CAPPLEMAN: Luis Rivera testified that during this July trip, Mr. Garcia was getting some instructions and direction from Ms. Magbanua. The trip was only about — I think about 36 hours from the time they left Miami to the time that they got back to Miami.
MS. CAPPLEMAN: During this trip there were 21 phone events between Garcia and Magbanua, including 12 calls.
MS. CAPPLEMAN: It should also be noted that on June 5th — so I'm backing you up now to June 5th — while Garcia and Rivera were in Tallahassee, Katherine Magbanua did try to call that old number that had belonged to Luis Rivera, for the first time ever in the records that we examined, and wasn't able to get him because he was no longer using that phone.
MS. CAPPLEMAN: But this is a call pattern consistent with her trying to get up with Garcia, trying to get up with Garcia, and when she can't get him, she calls other people to try to find him. And it made sense on June 5th, when they were in Tallahassee, that she tried to call Rivera — or the number she had for Rivera — because she knew they were together.
MS. CAPPLEMAN: So that's all the phone communications between Garcia and Magbanua on the July trip.
MS. CAPPLEMAN: So I talked about the instructions that Rivera says Ms. Magbanua was giving, such as, quote, "don't do anything stupid."
MS. CAPPLEMAN: On the day before the murder, they did something stupid by shooting a hole in the Prius. They also did something pretty stupid by posting a picture of an owl on Instagram, because, you know, obviously nobody's supposed to know where you are, and if you're posting on Instagram, it'll be obvious that you're in Tallahassee.
MS. CAPPLEMAN: This fact is interesting because it just is something odd that maybe you wouldn't make up if you were falsifying testimony or being spoon-fed testimony. I didn't spoon-feed in the owl. And, you know, we have owls here in Tallahassee, but probably not very much down in Miami where these guys live, so Rivera probably thought it was pretty neat and worth posting on Instagram. It's interesting that Ms. Magbanua called like, "You idiots, take this thing down." In addition, Ms. Magbanua told them on this date — so this is the 17th — that you have to get this done tomorrow because Dan Markel is leaving town. So that's why they knew that the job had to be completed on July 18th, and that's when it did get done. 23 phone communications between Garcia and Magbanua on the July trip. Now I want to back up just a little bit, talk about the July trip starting with Thursday. Okay, so Thursday, July 17th — this is the day before the murder — Luis Rivera says they scouted around the Markel residence. Both phones are consistent with having done that.
MS. CAPPLEMAN: There are two different time periods on this date before the murder where both phones are consistent with being around the Markel residence, and then that evening they're at the Roadway Inn, in the room rented for them by Mr. Nobles.
MS. CAPPLEMAN: Both phones are consistent with the Roadway Inn that night into the morning hours of July 18th.
MS. CAPPLEMAN: Friday, July 18th. This is the day that Dan Markel was murdered.
MS. CAPPLEMAN: The Prius arrives at Premier Gym at 9:16 in the morning. We know that from the surveillance video. And it departs around 10:38 a.m. So they wait there, stalking Mr. Markel after already having followed him to the daycare, as testified to by Mr. Leland and also Mr. Rivera.
MS. CAPPLEMAN: Corroboration.
MS. CAPPLEMAN: And then the bus shows them leaving Premier and heading towards Dan Markel's residence.
MS. CAPPLEMAN: So, with the bus videos being both right before and right after the homicide, you can narrow the time frame of Mr. Markel's death to between 10:44 and 10:54.
MS. CAPPLEMAN: We know that Mr. Markel started his phone call with Mr. Schlazer at 10:48, so that narrows it even further. Between 10:48 and 10:54 is when this crime occurred. And as you recall, Mr. Geiger kind of was keeping an eye on the place for a while before he called 911, and that call came in at 11:01. Mr. Garcia's and Mr. Rivera's phones are consistent with being turned off in the area of Premier Gym, and there's no additional location information between then and when they're back on the interstate headed back towards Miami about 12:30 p.m. That's when we get any more after Premier — that is the first phone information we get. And that piece of phone information is Mr. Garcia calling Ms. Magbanua at 12:30 p.m. That call does connect. The conversation does occur.
MS. CAPPLEMAN: That information corroborates Mr. Rivera's testimony that we called her and told her it was done.
MS. CAPPLEMAN: She said she knew.
MS. CAPPLEMAN: And then we told her we wanted our money. She said we got it the next day.
MS. CAPPLEMAN: If you look — so if you look at all the parties that are involved in this case, or that the State is alleging are involved, if you look at their phone activity from midnight before the murder through the first call after the murder, it's kind of interesting. You can see all the calls. The red line denotes when the murder occurred in this case.
MS. CAPPLEMAN: So you've got Katie, Garcia, Charlie, you know.
MS. CAPPLEMAN: All right, so murder's done.
MS. CAPPLEMAN: They travel back to Miami, and they hit this toll plaza eastbound at 5:23 p.m.
MS. CAPPLEMAN: Then they're seen at the Pembroke Pines ATM where Mr. Rivera does a transaction there.
MS. CAPPLEMAN: And after the ATM, both phones, Mr. Rivera's and Mr. Garcia's, are consistent with being at Rivera's residence at about 7 p.m. that night, the night of the murder.
MS. CAPPLEMAN: All right, let's talk about this Friday night meet.
MS. CAPPLEMAN: Where is Katherine Magbanua once Garcia and Rivera get back to Miami after the murder?
MS. CAPPLEMAN: Between 9:46 p.m. that night and 10:20 p.m. that night of the murder — this is kind of the, the red here is Ms. Magbanua, orange is still Mr. Garcia, and blue is still Mr. Rivera. So you can see all consistent with being at Mr. Rivera's residence for a meeting. All right, so Katherine Magbanua has two events this night with Charlie Adelson while she's in the area of Mr. Rivera's residence — 10:12 and 10:20 p.m. — after which her phone doesn't have any activity, consistent with it being turned off for that night.
MS. CAPPLEMAN: And then we'll go to Saturday morning.
MS. CAPPLEMAN: Saturday morning, July 19, 2014.
MS. CAPPLEMAN: This is all the call activity for that morning. There's like a flurry of activity for about 40 minutes.
MS. CAPPLEMAN: Katherine Magbanua is repeatedly trying to reach Mr. Garcia.
MS. CAPPLEMAN: She's unsuccessful because he's dumped his phone after the murder.
MS. CAPPLEMAN: Location of Ms. Magbanua shows that she's traveling south from the area consistent with Charlie Adelson's residence. Of course, it can be consistent with anything north of where she was at that time, south toward Rivera's residence.
MS. CAPPLEMAN: After seven failed attempts to call Garcia, Katherine Magbanua finally reaches out to Anthony Ortiz.
MS. CAPPLEMAN: Because she wasn't able to reach Rivera on his phone, she calls Ortiz.
MS. CAPPLEMAN: That's her first communication with Ortiz ever. That's at 9:47 a.m. on the day of the money drop, July 19th.
MS. CAPPLEMAN: Anthony Ortiz, in turn, calls Garcia himself, gets no answer because Garcia's dumped his phone.
MS. CAPPLEMAN: That was at 9:49 a.m. Then Ortiz calls and reaches Luis Rivera at 10:02.
MS. CAPPLEMAN: So now Luis Rivera knows that Katherine Magbanua is looking for Garcia.
MS. CAPPLEMAN: Rivera knows where to find Garcia because he's at Shrimp's house.
MS. CAPPLEMAN: Then for the first time ever — first time ever — we have phone contact between Rivera at the new number, the number he had at the time of the homicide, and Katherine Magbanua, when she calls him at 10:22 a.m. First she didn't get him, she tried Garcia again, and then one minute later she does call and get Mr. Rivera. This timing is consistent with when Rivera says he talked to her and she was irritated because she couldn't locate Garcia. She had the money. When are y'all going to come get this money?
MS. CAPPLEMAN: So between 10:00 and 10:30, Rivera's phone is consistent with going to the home of Garcia's new girlfriend, Shrimp.
MS. CAPPLEMAN: I guess Garcia was living there at the time as well.
MS. CAPPLEMAN: Rivera says he sent Anthony Ortiz with his — Rivera's — phone. Rivera said he didn't go to get Garcia, but in any event, Garcia was fetched from Shrimp's house and there was a meeting at Rivera's place, from about 10:23 to 10:32 a.m.
MS. CAPPLEMAN: There are events in which it appears Katherine Magbanua arrives at Luis Rivera's house and they all meet up for this money drop. So all their phones are consistent with being there. Have I missed the slide?
MS. CAPPLEMAN: This is the money drop slide.
MS. CAPPLEMAN: All right, and what kind of money does she bring?
MS. CAPPLEMAN: All hundreds, stapled together in stacks, consistent with the unusual way that Charlie Adelson packages his money — through the, bless her heart, tooth-extracting testimony of June Umchinda, who appears to be back in love with Charlie.
MS. CAPPLEMAN: We know he staples his money — that's a pretty weird thing — and the money they got paid with had the staple.
MS. CAPPLEMAN: Why does Katherine Magbanua have to be the connection? Is she the only link between the people that wanted this murder done — the people with the motive to do this — and the hitmen that were just doing it for money? Rivera testified that she is the connection, but is there anything else to corroborate that? You don't want to rely on Rivera because he's a gangster and he's a murderer and he's, you know, all the things. So what else do we have to corroborate what it is he's telling us about Magbanua being the link? All right, so for starters, she was sleeping with both Charlie Adelson and Sigfredo Garcia. That's a pretty good link. They knew each other existed, but they didn't know that she was playing both sides. Law enforcement reviewed all the call detail records. This is important. Law enforcement looked at all call detail records of Magbanua, Garcia, Rivera, Markel, Donna Adelson, Charlie Adelson, and Harvey Adelson, including Charlie Adelson's iCloud, which has hundreds of thousands of records, and also that RICO wire associated with Mr. Rivera's federal conviction. And there was, in all of that data, zero evidence or proof of communication whatsoever between any Adelson and Mr. Rivera. There was no evidence or proof of communication whatsoever between the Adelsons and Mr. Garcia, except for that one phone call on July 1st from Garcia to Harvey Adelson that was a hang-up or a voicemail, and that call was not answered. I don't know if it was a hang-up or a voicemail.
MS. CAPPLEMAN: One call, July 1st, from Garcia to Harvey Adelson — and that's how we managed to identify Garcia on the tower dump, because of that connection to Harvey.
MS. CAPPLEMAN: Other than that, the two killers had zero communication. And the defense wants to say, well, what about all these other phones that we don't know about? Let's focus on what we know about.
MS. CAPPLEMAN: What we don't know about, we don't know.
MS. CAPPLEMAN: What is the evidence?
MS. CAPPLEMAN: Show us.
MS. CAPPLEMAN: In the case, they're talking to everybody else on these phones.
MS. CAPPLEMAN: They're doing drug deals on the phones.
MS. CAPPLEMAN: Charlie does his steroid deals and all that on the phones.
MS. CAPPLEMAN: It's present on the iCloud.
MS. CAPPLEMAN: So why would we think there's some — we would have to speculate if we want to try to say there's some other link between the Adelsons and the killers.
MS. CAPPLEMAN: It just doesn't exist. There's no evidence.
MS. CAPPLEMAN: What is there evidence of? A link. The link is named Katherine Magbanua.
MS. CAPPLEMAN: I mean, it seems obvious.
MS. CAPPLEMAN: There is no evidence or proof or records at all of Charlie Adelson and Sigfredo Garcia communicating. The defense showed you that deep-sea fishing text and purported that to be the evidence that these two were talking.
MS. CAPPLEMAN: But to the contrary, if you read it in its context, I think you will see that it's evidence to the contrary — that they were not talking. "Did he call you?" "No."
MS. CAPPLEMAN: "Oh, yeah, he did. He wants to take me deep-sea fishing. Ha, ha, ha." Even their client on the stand admitted that was a joke, and that she's not aware of any contact between Mr. Garcia and Mr. Charlie Adelson. I want to talk a little bit about the financial evidence in this case.
MS. CAPPLEMAN: All right, let's start with the Adelsons. What did Mary Hull tell us about the Adelsons' financial picture?
MS. CAPPLEMAN: It was quite different from what Wendi Adelson told us about her parents. She said they were not very well off and they were not millionaires.
MS. CAPPLEMAN: But what their financial records revealed is that they have 18 investment accounts totaling somewhere in the neighborhood of 10,000 pages worth of investments.
MS. CAPPLEMAN: Charlie Adelson earns between three and three and a half million dollars annually.
MS. CAPPLEMAN: And separately, the Adelson Institute earns another two million annually.
MS. CAPPLEMAN: That doesn't even include their investments.
MS. CAPPLEMAN: Here are the checks that Katherine Magbanua got from the Adelson Institute.
MS. CAPPLEMAN: The red line items indicate that these are consecutively numbered checks.
MS. CAPPLEMAN: Here is a photograph of a motorcycle that Mr. Garcia and Mr. Rivera bought.
MS. CAPPLEMAN: Mr. Garcia bought a car, this Monte Carlo, within one week of getting paid to do this murder.
MS. CAPPLEMAN: Well, the defense says this is a pretty crappy car.
MS. CAPPLEMAN: Okay, I mean, it's not like they got a million bucks.
MS. CAPPLEMAN: They blew a bunch of money. They got about $40,000. He bought a car and a motorcycle within a short period of time from the murder. I would think that would be of importance to you all.
MS. CAPPLEMAN: Defense wants to strike that.
MS. CAPPLEMAN: So he got $40,000. This is Mr. Garcia. He gave a couple thousand out of his cut to Mr. Rivera.
MS. CAPPLEMAN: So let's say he's down to $38,000.
MS. CAPPLEMAN: So it's not like he's going to be able to purchase a luxury vehicle with that. But he did buy this motorcycle on August 22, 2014.
MS. CAPPLEMAN: a gold Maxima on October 17, 2014, and the Monte Carlo as well, all within three months of them.
MS. CAPPLEMAN: Mr. Rivera bought the matching bike and also a Camry within two weeks of the murder. Within two weeks!
MS. CAPPLEMAN: So between the two of them, within three months of the murder, we've got five vehicles being purchased.
MS. CAPPLEMAN: Other than that, Mr. Rivera gave a little money to his family and managed to keep his account in the black for a couple months. I think it went back in the red in November and he started living hand-to-mouth off his paychecks again, as he was prior to coming up here and extinguishing the life of Dan Markel for that $37,000.
MS. CAPPLEMAN: dollars. Katherine Magbanua, she deposited her money — she deposits her money, and she makes deposits in small amounts, sometimes more than one per day, at different ATM machines.
MS. CAPPLEMAN: She's got two different banks, and she's going around to different ATMs depositing money into multiple accounts.
MS. CAPPLEMAN: Note on one of the exhibits, which I don't think I have in here — I don't — but it's Exhibit 106.
MS. CAPPLEMAN: There's a payment to Mr. Zangeneh on there.
MS. CAPPLEMAN: July 21st, 2016, $1,000. Mr. Zangeneh does not represent her.
MS. CAPPLEMAN: And September 12th, 2016, $2,000.
MS. CAPPLEMAN: Ms.
MS. CAPPLEMAN: Magbanua — no co-workers, no patrons, and produce no documents whatsoever to support this contention.
MS. CAPPLEMAN: As evidence, she offers a photograph of herself scantily clad at what appears to be a nightclub. I don't see an apron, I don't see a tray, I don't know if she works there, I don't know when that photo was taken — I don't know nothing about nothing based on that. She also offers a check that was deposited, or attempted to be deposited, from Club Fate.
MS. CAPPLEMAN: Yindra Mascaro indicated that she quit Club Fate because Club Fate didn't pay — their checks were bouncing. And Mary Hull confirmed that. The check that the defense has proffered in evidence for your consideration — which, first of all, it's not cash, it's a check for tips.
MS. CAPPLEMAN: It bounced, so it cannot go into this consideration of her accounts at all.
MS. CAPPLEMAN: Yindra Mascaro told you that Katherine Magbanua was not working in the clubs at the time that this murder occurred.
MS. CAPPLEMAN: Yindra Mascaro is Ms. Magbanua's best friend.
MS. CAPPLEMAN: One of them is the godmother to the other one's child. I think Ms. Magbanua is the godmother to her child.
MS. CAPPLEMAN: To the contrary, Mascaro says that she and Magbanua worked together at Hollywood Live in 2014.
MS. CAPPLEMAN: Mascaro quit the club when she found out she was pregnant on July 4th, 2014, and Magbanua had already quit four to eight weeks prior to that because she was, quote, tired of the club life and was, quote, over it.
MS. CAPPLEMAN: So Kate — Katherine Magbanua quit between May 4th and June 4th, according to this testimony, 2014.
MS. CAPPLEMAN: It should be noted that June 4th was the first trip to Tallahassee intended to be the murder trip. So maybe she quit that crappy job because she was anticipating this big payday that was going to happen if the murder had occurred as originally planned.
MS. CAPPLEMAN: Then she goes to work for the Adelsons and collects a paycheck there after the homicide.
MS. CAPPLEMAN: She did work prior to that for Charlie Adelson's friend Mr. Jerome Obed at Broward Dermatology. She worked there for a couple months, and that's indicated on here. Her Sophie Dental Care records are indicated on here as well. All of her employment that can be documented is present on this chart — and look where the gap is.
MS. CAPPLEMAN: I mean, I didn't make this up — and that's where the cash spike is.
MS. CAPPLEMAN: If she's working at the club unbeknownst to Yindra Mascaro, she had the best month of her whole life — the same month that Mr. Markel was killed.
MS. CAPPLEMAN: If she made $1,500 a night, she only did it in July of 2014.
MS. CAPPLEMAN: And that was before the breast augmentation that supposedly increased her tips, with a P.
MR. DECOSTE: Objection.
JUDGE HANKINSON: Overruled.
MS. CAPPLEMAN: Her breast augmentation was in October of 2014.
MS. CAPPLEMAN: So to the extent that it was intended to augment her tips, it did not. They in fact declined after that time frame.
MS. CAPPLEMAN: Her cash deposits declined after that time frame.
MS. CAPPLEMAN: According to Ms. Mascaro, Ms. Magbanua worked for Jerome Obed — Dr. Obed — at Broward Dermatology for a couple months, and then the next job that her best friend is aware of her having was at Optima Realty.
MS. CAPPLEMAN: There's the murder. That's when the murder occurred.
MS. CAPPLEMAN: That's when the breast augmentation occurred.
MS. CAPPLEMAN: All right, we're going to get to that in just a minute.
MS. CAPPLEMAN: I want to wrap up the financial stuff. The check Katherine Magbanua is using — I talked about how it was not cash.
MS. CAPPLEMAN: I talked about how it bounced, so it cannot explain the cash spike.
MS. CAPPLEMAN: In addition, according to Ms. Mascaro, you cannot make this kind of money that we're seeing on that chart in the clubs. Even on a good night, we're talking about four or five hundred dollars. Ms. Magbanua says no, it's more like fifteen hundred. Even if she was making fifteen hundred dollars, it doesn't account for that spike, and the timeline doesn't add up. Ms. Mascaro says they worked one to two nights a week — each of them, that Ms. Magbanua worked one to two nights a week. Even if she made three grand, had a fifteen-hundred-dollar night twice in July of 2014 — It's only $3,000. She's got $13,000 in deposits.
MS. CAPPLEMAN: Her being put on the payroll at the Adelson Institute is a sham. There is no evidence of her doing any work on the weekend. She even admits she might have gone out there one time.
MS. CAPPLEMAN: There is no evidence of her making any calls or doing anything online, and we were listening to her phone.
MS. CAPPLEMAN: She wasn't able to shed any light on what it is that she does while she was on the witness. She said she's the personal assistant to Charlie Adelson — or was the personal assistant.
MS. CAPPLEMAN: I don't know what that entails, but why would the Adelson Institute be paying her? The Adelson Institute is a separate entity. Mr. Adelson travels from office to office as a freelance periodontist. Why wouldn't he pay his own personal assistant?
MS. CAPPLEMAN: Why is Donna Adelson writing checks out of the Adelson Institute account for Katherine Magbanua at a business that does not employ remote employees, does not have work to be done outside the office by phone or by laptop? In the history of the office — Ms. Lebredo has worked there 40 years — they've never had such an employee.
MS. CAPPLEMAN: But Magbanua was the exception.
MS. CAPPLEMAN: She's the one that gets put on the payroll.
MS. CAPPLEMAN: And she's not even dating Mr. Adelson.
MS. CAPPLEMAN: This isn't like, hey, put my girlfriend — she's down on her luck — put her on the payroll, Mom.
MS. CAPPLEMAN: He's chucked her already, around the time of the murder. He ghosted her, and then two months later, she ends up on the payroll.
MS. CAPPLEMAN: Never in the history of that office have they employed one of his ex-girlfriends.
MR. DECOSTE: Objection — facts not in evidence.
JUDGE HANKINSON: Overruled.
MS. CAPPLEMAN: And as we know, there were many.
MS. CAPPLEMAN: You heard what transpired when officers walked in there to subpoena her employment file.
MS. CAPPLEMAN: Erika Johnson had to go call Charlie Adelson for direction on what to tell him.
MS. CAPPLEMAN: And he said what? I'm going to have to call you — well, first he went uh, uh, uh, uh, uh, and then he said, let me call you back on your cell phone from a landline. Now why would that be necessary?
MS. CAPPLEMAN: And when the records were provided, they were woefully lacking and shed no light whatsoever on what it is that Katherine Magbanua does there, what are her hours, what are her duties — because she didn't have any.
MS. CAPPLEMAN: She was paid starting within two months of the murder. She was getting consecutive checks, sometimes four at a time, all handwritten by Donna Adelson, and her best friend Yindra Mascaro said she never worked there.
MS. CAPPLEMAN: She also got a lot of gifts from Charlie Adelson after the murder. She was put on the Adelson payroll, as we talked about, and you saw the list of checks.
MS. CAPPLEMAN: She netted a total from them of $17,729.73.
MS. CAPPLEMAN: She did pay cash for her breast augmentation, which she says she saved up for, but there's, you know, no corresponding withdrawal. She says she held back the cash deposits, but she also deposited about four grand in cash that month. So she had a pretty good month if she saved up that much money and still continued to have the steady deposits that are shown on this exhibit, State's 114. On November 10th of 2015, Charlie Adelson paid $1,620.77 for repairs to her Mazda — the black Lexus, which was formerly owned by Harvey Adelson, and which she told Yindra Mascaro was a gift, and which, according to Mascaro, was in pristine condition.
MS. CAPPLEMAN: She acquired the title to that on January 23, 2016.
MS. CAPPLEMAN: All of these things post-murder, and all of them post-relationship with Mr. Adelson.
MS. CAPPLEMAN: It should be noted that on November 5th, 2015, Charlie Adelson tells Katherine Magbanua in a text message that his dad had recently put five grand into the Lexus before he bought it from his dad.
MS. CAPPLEMAN: On November 6th, 2015, Charlie Adelson gives Katherine Magbanua his credit card. On May 20th, 2015, she's asking Charlie Adelson for money when at the time she had $15,000 in her account.
MS. CAPPLEMAN: Six days later she deposited $1,400 in cash.
MS. CAPPLEMAN: She has no recollection of ever getting any cash from Mr. Adelson.
MS. CAPPLEMAN: There was a lot of back and forth between the State and defense about these financial benefits and gifts, but I think the bottom line is clear. She was receiving some very unusual treatment for an ex-girlfriend.
MS. CAPPLEMAN: There's nothing wrong with giving people gifts or loans or handouts, but when you look at this financial picture in comparison to the homicide date, it's pretty undeniable that she had this huge benefit that coincided dead-on with the murder of Mr. Markel. Mr. Rivera said that her cut was $30,000 for her part in this crime. $30,000. If you subtract her identifiable legitimate income from her cash deposits in 2014, guess what the difference is — $30,000.
MS. CAPPLEMAN: That, when considered with the Adelson Institute checks and the other gifts she received and all the other evidence in this case, is very compelling evidence.
MS. CAPPLEMAN: Katherine Magbanua says she earned the money at the club, but you know she wasn't in the club because of Ms. Mascaro's testimony. Now, she may have gone back to the club after the murder, but at the time of this spike, she was not in the club.
MS. CAPPLEMAN: Also of importance, before we leave Ms. Mascaro and go to the wire: the night Dan Markel was shot, Katherine Magbanua asked Yindra Mascaro to watch her kids. This was an unusual request, for her to keep the kids overnight.
MS. CAPPLEMAN: This is the night that Magbanua's phone is consistent with meeting Rivera and Garcia at Rivera's residence — the one where Jessica lived — and then leaving. The phone is off all night, and then the next morning she's traveling south, talking to Charlie Adelson for 25 minutes, and then her phone is consistent with the money drop, which was that slide I showed you before, all consistent with Mr. Rivera's residence.
MS. CAPPLEMAN: When she shows up at Ms. Mascaro's house to pick her kids up that day, that morning, she tells Ms. Mascaro that Charlie Adelson's brother-in-law has been in a car accident.
MS. CAPPLEMAN: All right, let's talk about the wire.
MS. CAPPLEMAN: When the undercover hands Donna Adelson an article about her murdered son-in-law, insinuates that she was involved, and then tries to extort $5,000 out of her, does she go straight to the police? This person has information about who it was that killed her son-in-law. This is a cold case. He was executed in cold blood in his driveway in Tallahassee, and now this man approaches her and he knows about it. A, that's really scary for her, and B, she's going to solve this murder. But what does she do?
MS. CAPPLEMAN: Does she report it to law enforcement?
MS. CAPPLEMAN: Nope. She goes straight to Charlie Adelson, who goes straight to Katherine Magbanua, who goes straight to Sigfredo Garcia.
MS. CAPPLEMAN: That's exactly what this undercover operation was designed to ferret out. Where will this information travel if we put it in the hands of Donna Adelson?
MS. CAPPLEMAN: She calmly folds that piece of paper and puts it in her bag without even looking at it.
MS. CAPPLEMAN: She goes to pick up her grandsons from school, she returns home, and she calls Charlie Adelson.
MS. CAPPLEMAN: They meet the next day.
MS. CAPPLEMAN: It's crucial to note that while the first few calls are not in evidence — you don't have the content of the conversations between Charlie Adelson and Donna Adelson — the fact about those calls has come in for you to consider, which is that Donna did not say the name Katie to Charlie Adelson before this meeting. We don't know what they said in this meeting. We tried to surveil it, but we couldn't; it's too loud, or whatever, we couldn't record it. But the phone calls prior to this meeting do not include any mention of the name Katie or Katherine Magbanua, despite the fact that the undercover did say it. And before this meeting, Charlie Adelson calls Katherine Magbanua. So he was not told the name yet. Out of all his ex-girlfriends — I think it's 87, he says in one place; that's probably exaggerated, but maybe not — he calls one ex-girlfriend, Katherine Magbanua. Then he goes to meet his mother to get the details, and he tells Ms. Magbanua in that first call, you know, oh, maybe it's not you, I just, you know, they said ex-girlfriend, so I'm calling you. I'll get back to you if it does involve you. And then he gets back to her.
MS. CAPPLEMAN: As it does involve her.
MS. CAPPLEMAN: So you've heard these initial calls where they're kind of dancing around the issue. He can't know for sure whether or not she's a part of this.
MS. CAPPLEMAN: Because this guy's representing himself as some Latin King guy that knows information about the murderer. Knows the killer.
MS. CAPPLEMAN: So is Katherine Magbanua involved in the plot, text toward his mother? He can't be sure at this point.
MS. CAPPLEMAN: Neither can be sure that it's not the police.
MS. CAPPLEMAN: They both know they're under suspicion.
MS. CAPPLEMAN: So they're just feeling each other out in those first few calls. Call F seems to be the first one where they kind of drop that. So Charlie's offering to pay for Katherine Magbanua and Sigfredo Garcia to go on a weekend getaway in Call F.
MS. CAPPLEMAN: Call K, which I tried to include.
MS. CAPPLEMAN: All right So I forget what I said about Call K. The Dolce Vita meeting — you know that we can't hear very much in this, but I want to play it for you so that you can see him looking at the paper.
MS. CAPPLEMAN: Ms. Magbanua cannot recall any of the contents of that conversation other than Mr. Adelson was talking about scenarios.
AUDIO RECORDING: I'm going to tell you something right now, and I'm going to make this very clear. I'm going to make something very clear because you're talking belligerent. I'm going to make something very clear, okay?
AUDIO RECORDING: Why? Because you don't know how to apologize, because you were wrong, okay?
AUDIO RECORDING: This is the same thing that happened last time.
AUDIO RECORDING: Listen, I have a more pressing matter that I have to attend to, okay?
AUDIO RECORDING: You go figure it out. You go figure it out. You figure out the kids. You figure out life. You figure out your partner. Katie, Katie, Katie. You're so... Katie, you're doing this again. This is the same shit. I've been here.
AUDIO RECORDING: I've never felt... If you need to do to make yourself happy, then I'm not going to hold you back.
AUDIO RECORDING: Because it's like you're basically... Do that.
AUDIO RECORDING: Do that. You're going to bring me over. You're going to tell me... I'm going to make a phone call.
AUDIO RECORDING: I'm not making that fucking phone call.
MS. CAPPLEMAN: This is a clip from call K. This is the first call where we hear Sigfredo Garcia, and he's not happy — maybe because he has learned for the first time that Charlie Adelson is involved in this whole thing. Maybe he's learned that Charlie Adelson was the one that really paid him to do the deal. That's just a theory, but... What we know is that Magbanua was asked to get to the bottom of this and figure out who was behind it, who it was that approached Charlie Adelson's mother. She assures Charlie Adelson she's going to handle it herself, but what she does is go to Sigfredo Garcia and put the task on him. You call the phone number, you figure out who it is, do what you want to do, do it. I'm going to take care of my — I'm going to take care of this problem. I'm going to take care of this problem. And then, because...</reasoning> <corrected_utterance speaker_tag="CAPPLEMAN">What we know is that Magbanua was asked to get to the bottom of this and figure out who was behind it, who it was that approached Charlie Adelson's mother. She assures Charlie Adelson she's going to handle it herself, but what she does is go to Sigfredo Garcia and put the task on him. You call the phone number, you figure out who it is, do what you want to do, do it. I'm going to take care of my — I'm going to take care of this problem. I'm going to take care of this problem. And then, because... the less you know, the...
AUDIO RECORDING: Stop talking on the phone, man. Bye.
MS. CAPPLEMAN: Here's a slide of text S, which was introduced into evidence, on April 26, 2016.
MS. CAPPLEMAN: Garcia says to Magbanua, whatever is going on with you and your homie — who she admits is Charlie Adelson — is your business. You guys work that shit out, don't text me. Katherine Magbanua admits that Garcia could not stand Charlie Adelson.
MS. CAPPLEMAN: In call L, Katherine Magbanua is giving Garcia the undercover's number, and she does it in code. This is a really important piece of evidence. What was her explanation for why she was talking in code?
MS. CAPPLEMAN: "Because my kids were around, or my co-workers were around." Well, you're given a phone number. Why does that need to be coded?
MS. CAPPLEMAN: She's talking about Ethan's clothes costing $65.70.
MS. CAPPLEMAN: What's that about?
MS. CAPPLEMAN: That's the last four digits of the undercover number.
MS. CAPPLEMAN: Of course, he doesn't get it, and she has to repeat it several times, and eventually he does get it. After she says, the amount that I gave you on that piece of paper — I'm not sure if it's sixty-five, sixty-seven dollars and fifty cents, or sixty-five dollars and seventy cents. And he goes, got it.
MS. CAPPLEMAN: I asked Katherine Magbanua, why would it be necessary? Did she give an explanation for that that was reasonable to y'all?
MS. CAPPLEMAN: In the next several calls, the three of them — Charlie Adelson, Katherine Magbanua, and Sigfredo Garcia — proceed to have this ridiculous "what's the number, what's the number" back-and-forth conversation, trying to get this number straight, and really all trying to act like they're calling it when they're not calling it.
MS. CAPPLEMAN: Call Z is the one where Charlie Adelson is indicating to Katherine Magbanua that he wants the problem flushed. And that was a joke, in the sense that it was potty humor.
MS. CAPPLEMAN: But I think it was a reference to what the real problem was, that he did in fact want flushed.
MS. CAPPLEMAN: Then he says, why don't you guys go on vacation, leave the kids at home, have a cocktail, and call it a day.
MS. CAPPLEMAN: He offers to pay for that vacation. Why is Charlie Adelson offering to pay for her and her baby daddy to go on vacation?
MS. CAPPLEMAN: Charlie's trying to get Katherine Magbanua to call that number.
MS. CAPPLEMAN: Magbanua's trying to get Garcia to call it.
MS. CAPPLEMAN: Garcia's lying to Magbanua about having called it. Magbanua's lying to Charlie about having called it. Charlie is lying to his mother, assuring her that he's got it all figured out and it's no problem.
MS. CAPPLEMAN: And that, you know, alluding that it's the police, it's not any real threat.
MS. CAPPLEMAN: And then there's State's DD — Katherine Magbanua and Charlie Adelson.
MS. CAPPLEMAN: Okay.
MS. CAPPLEMAN: I'm told I have about 30 minutes remaining, so I'm going to keep going, finish what I have planned.
AUDIO RECORDING: I'm calling a timeout for this.
AUDIO RECORDING: What happened?
AUDIO RECORDING: Okay.
AUDIO RECORDING: You left the number on there.
AUDIO RECORDING: Somebody say fucking polimia wrong.
AUDIO RECORDING: 305-1.2-357. Exactly.
AUDIO RECORDING: That number is obviously — it's like a non-working number.
AUDIO RECORDING: No one wants you to be called back. Do you still have that number?
AUDIO RECORDING: Yeah, well obviously it's not a non-working number. It's like a Gmail number.
AUDIO RECORDING: It's like, get that number that's off of your — off of the thing, off of the number, off of the freaking caller ID.
AUDIO RECORDING: At the office?
AUDIO RECORDING: It's like a fucking bullshit game.
AUDIO RECORDING: They're not coming out on foot. They're not writing letters, and they're not calling the office.
AUDIO RECORDING: Why do you want to talk about this? It's not a fucking joke.
AUDIO RECORDING: It's not a fucking joke, Katie. It's not. Somebody's harassing you guys, and somebody's harassing my name.
AUDIO RECORDING: Okay. It's straight from my fucking cell phone, because it's fucking bullshit.
AUDIO RECORDING: Somebody's trying to pinpoint some bullshit.
AUDIO RECORDING: It's getting aggravating. Yeah, it is.
AUDIO RECORDING: All I'm saying is find out who the fuck it is and tell them to stop playing their games.
AUDIO RECORDING: You gave a fucking wrong number. Get the fucking number and a fucking call, because I'm gonna call them.
AUDIO RECORDING: It needs to be nipped in the bud.
AUDIO RECORDING: I'm gonna handle this shit myself, bro. This shit is all bullshit.
AUDIO RECORDING: I'm gonna handle it my motherfucking self.
AUDIO RECORDING: Well, I'm gonna call your number. If Erica wants to call back and be like, oh, is this the right number? Okay, I'll have your fucking — whatever fucking shit — taken care of.
AUDIO RECORDING: What I'm saying is, find out who the fuck — Hey.
AUDIO RECORDING: Trust me on this.
MS. CAPPLEMAN: This is called DD. You couldn't hear it very well, but those were some clips from it. And Ms. Magbanua drops the code in this, and she says it. She's like, I'm done with this code crap, and really kind of reveals herself a little bit. And it's after this call that Charlie Adelson finally does actually call the undercover, and you heard the call, GG, that he had with the undercover.
MS. CAPPLEMAN: What does Charlie Adelson say when the undercover explains that since his family's problem has been taken care of up north, Charlie Adelson has taken care of Katie and Tuto, but has done nothing for Tato?
MS. CAPPLEMAN: Does he say, what family problem up north? What are you talking about? Why did you hand a picture of my murdered brother-in-law to my mother? Or, I have no idea what you're talking about.
MS. CAPPLEMAN: No. He says, all right, let me look into things. Quote.
MS. CAPPLEMAN: Then in HH, Charlie Adelson is reporting back to Magbanua what his conversation was with the undercover on call GG.
MS. CAPPLEMAN: Mr. Adelson says that the undercover says Tuto and Tato, but he just says he doesn't know them.
MS. CAPPLEMAN: Magbanua knows exactly who Tuto and Tato are, but she doesn't enlighten Mr. Adelson as to who these folks are.
MS. CAPPLEMAN: JJ, Ms. Magbanua reports the latest bump, which was the call to the Adelson Institute, to Mr. Garcia, and says, quote, it's getting too detailed.
MS. CAPPLEMAN: It's somebody that knows for sure. This call ends with more discussion about what the number is.
MS. CAPPLEMAN: Garcia wants Magbanua to text it to him, and she says, no, I don't want to.
MS. CAPPLEMAN: Why not? If you're just helping out a friend to investigate something you have nothing to do with, why talk in code? Why the fear of texting the number?
MS. CAPPLEMAN: Call PP, Ms. Magbanua is bragging about the really nasty voicemail that she left on the undercover's voice message machine, when neither she nor Garcia had left any such voicemail. She's playing both sides, Garcia against Charlie and back and forth, telling them both what they want to hear.
MS. CAPPLEMAN: In the same call, PP, she's discussing in code the different scenarios that the bump could be.
MS. CAPPLEMAN: Adelson suggests in code that it's the cops, and Magbanua says, quote, that's one scenario, but you know, you've got to figure out the other things just in case. It can only be one of the two, apparently. It's somebody that's desperate, not from the inside.
MS. CAPPLEMAN: That's what I know for a fact. It's not from the inside.
MS. CAPPLEMAN: It's somebody trying to be greedy. I'm hoping I'm on the right lead, and either way, my friend said that either way, no matter what, he takes total responsibility of whatever, just because of the mere fact of my name.
MS. CAPPLEMAN: That's the wire. I want to talk to you, and I'm running out of time, but briefly about the law. The crime charged is a first-degree murder because it was premeditated.
MS. CAPPLEMAN: I don't even really want to talk to you about lesser included offenses and waste my valuable tiny minutes that are dwindling, because this is about the most premeditated murder imaginable. We've got stalking and following and planning and trips and stuff going back a year in time. We talked in jury selection, so very, very long ago, about how there's no fixed amount of time to generate premeditation. Certainly, certainly, we have lots of evidence in this case.
MS. CAPPLEMAN: This murder began with the failed relocation efforts, when Charlie Adelson first looked into hiring a hitman. It took root when Katherine Magbanua enlisted Mr. Garcia, who enlisted Mr. Rivera, to do this killing. The planning that went into the killing was extensive, spanning a six-week period, including 2,000-mile trips made in rented vehicles, scouting out the scene, stalking Professor Markel. And all the planning, all the meetings, all the calls came to fruition when Garcia fired those two shots into Mr. Markel's vehicle and devastated so many lives in an instant. When you think about how this case was proven, we started at a single point, the crime scene, and we went in two totally different directions. We chased the Prius, and we chased this lead that there was bad blood between the family. And the investigation would have completely stalled if either of those leads had not generated anything. But all those little breadcrumbs led to the same place. The Prius led to Rivera, Rivera led to Garcia, and the bad blood led to the Adelsons, and both trails end at Katherine Magbanua. When you consider the principal instruction as it relates to these two defendants, I expect you will determine that the instruction does not really apply to Mr. Garcia if you find that he pulled the trigger. If you don't think that's been proven, then you should convict him as a principal to Mr. Rivera, in that he hired Mr. Rivera to do the crime, rented the first car for the purpose of coming to Tallahassee to kill and/or stalk Mr.
MS. CAPPLEMAN: Markel, and then he made both trips and participated in the stalking of the victim and casing the residence.
MS. CAPPLEMAN: In reference to Katherine Magbanua, I do expect that the principal instruction will be crucial to your considerations for her count one murder charge.
MS. CAPPLEMAN: There are two ways to prove Ms. Magbanua's guilt for first-degree murder under principal theory.
MS. CAPPLEMAN: One: if she intended that the murder be done, and she did some act or said some word that caused or helped another to commit the crime, then she is also guilty of first-degree murder. Think about a buyer who hires a contractor to build his home. The contractor, Magbanua, gets money from the buyer and hires and pays subs to do the work, while getting her own cut of the payment. Second way: if she intended the murder to be done, and she promised payment in exchange for the murder — bless you — and the crime was committed by another person, she's also guilty of first-degree murder. So, two ways to prove the principal theory. Under the second way to prove principal theory, think of Ms. Magbanua as assisting someone who wanted Markel dead and was willing to pay, so she located, hired, and paid the hitman, and his helper, for committing the crime. Both ways have been proven, and I would suggest that you should convict her under both theories of principal.
MS. CAPPLEMAN: Both of these defendants are guilty of everything they're charged with.
MS. CAPPLEMAN: You have been so very patient throughout this process, and when you get back to the deliberation room, I urge you to take your common sense with you — and that's in the jury instructions as well.
MS. CAPPLEMAN: It all really boils down to that. If the defense or I have offered or asked you to speculate about anything, don't do that. The jury instructions tell you not to do that. Remember that what any of us say is not evidence. They may ask you to discount evidence, but that's up to you to make a decision. They make an argument about discounting it or not; that's ultimately up to you, whether or not to accept or discount any piece of evidence or testimony. They may tell you that because all the evidence fits, it's not what it appears — it's something else. They may tell you that the State is blindly or willfully misleading you in some way. Your feelings about the lawyer should not influence your verdict. If you think that, you know, I'm crooked and I've been spoon-fed and all that, that's something you can consider as far as how it affected the evidence in the case, but your personal feelings about me and whether I'm as crooked as they say should not affect your verdict in the case.
MS. CAPPLEMAN: You should use your common sense in deciding which evidence to believe and which evidence to discard. We are all trusting you to render a wise and legal verdict in this case, and based on all the evidence and testimony that y'all have painfully sat through over this long period of time, that verdict should be a verdict of guilty as charged. Thank you.
JUDGE HANKINSON: Let's take as quick a break as we can. Let's keep it as close to five minutes as we can. I know it takes a while.
MR. ZANGENEH: Your Honor, Ms. Kawass, Mr. DeCoste, Ms. Cappleman, Ms. Norris, ladies and gentleman of the jury. For the last three weeks the government has been selling you their story. We're gonna call this story the Sigfredo Garcia house.
MR. ZANGENEH: Not to be confused with the Donna Adelson house, the Charlie Adelson house, the Harvey Adelson house, and the Sigfredo Garcia house, and they want you to buy it. My job is inspector.
MR. ZANGENEH: My job is to point out the things that they don't want you to see.
MR. ZANGENEH: We're going to talk about the problems with the foundation.
MR. ZANGENEH: We're going to talk about problems with the wiring. We're going to talk about problems with the plumbing.
MR. ZANGENEH: The foundation of the government's case, unequivocally, without a shadow of a doubt — because the government said it in their own closing — is that he is the linchpin of their case.
MR. ZANGENEH: He is. And the definition of linchpin is one that serves to hold together parts or elements that exist or function as a unit.
MR. ZANGENEH: He's the only person that tells you what he believes happened there.
MR. ZANGENEH: So who is Luis Rivera?
MR. ZANGENEH: Let's talk about who he is.
MR. ZANGENEH: Luis Rivera — and, you know, the government tries to downplay this, but it's important to know who's on that stand. And who is he?
MR. ZANGENEH: He's the head of a criminal organization, one that he got indicted for for racketeering.
MR. ZANGENEH: He's been a crown of the Latin Kings, the first crown, for almost 15 years.
MR. ZANGENEH: Why does that matter?
MR. ZANGENEH: Because he is a person that has criminal connections in his own criminal organization.
MR. ZANGENEH: He told you that. He got up there and he goes, I have a hundred people just in the North Miami tribe of the Latin Kings. A hundred people. And that's a small tribe in a nationwide organization that is peppered throughout the state of Florida.
MR. ZANGENEH: Why does that matter?
MR. ZANGENEH: During my cross-examination — when his phone, Luis Rivera's phone, was intercepted in his federal RICO case, in a one-month period he solicited the assistance of violent criminals — 30 days. Now, how do we know Sigfredo Garcia wasn't someone? We know this. We know that Luis Rivera was indicted. We know that he pled guilty to a federal indictment. And we know that when the arrest happened in this case, he was in prison — the federal prison.
MR. ZANGENEH: Was there any evidence to suggest that Sigfredo Garcia was in federal prison? Quite the contrary.
MR. ZANGENEH: Sigfredo Garcia was working at the finance place when federal agents went to apprehend him. So what does this mean?
MR. ZANGENEH: He's not on that indictment.
MR. ZANGENEH: He's not part of Luis Rivera's criminal network.
MR. ZANGENEH: Because during the 30 days the federal government was listening to every phone call and every text message that Luis Rivera sent, there was not one that implicated Sigfredo Garcia. Because if there was, a reasonable person would assume that he would have been on that RICO statute, and he wasn't.
MR. ZANGENEH: And what does it also show? That he has a network of people that he can talk to — and by talk to, I mean discuss criminal acts, because that's what they do.
MR. ZANGENEH: This is not a charitable organization.
MR. ZANGENEH: This is a violent gang.
MR. ZANGENEH: A violent gang that carries out violent crimes. Listen, I asked him. I go, so you're a self-described jack boy. Remember when he said that? What does that mean?
MR. ZANGENEH: He goes and he robs people.
MR. ZANGENEH: And who does he rob?
MR. ZANGENEH: He robs drug dealers, probably innocent people too, regular people. I don't think he differentiates. And what's his take on a regular robbery? What did he say? Between ten and twenty thousand dollars. Why is this important?
MR. ZANGENEH: You don't get paid.
MR. ZANGENEH: Luis Rivera had indicated that he makes ten to twenty thousand dollars.
MR. ZANGENEH: Luis Rivera told you that he is no longer associated.
MR. ZANGENEH: He has fear that there's going to be retribution against him.
MR. ZANGENEH: Fear was so deep-rooted that he got up there and he says, man, I'm in protective custody, they're gonna kill me.
MR. ZANGENEH: And the date of this letter is November 3rd, 2016, a hop, skip, and a jump away from when he started cooperating and took his plea deal when it became public in mid-October. And after two weeks in isolation — they put him in isolation to protect him.
MR. ZANGENEH: What does he tell them?
MR. ZANGENEH: He wants out.
MR. ZANGENEH: He wants out of isolation. It's really important, so I want you to read the last line.
MR. ZANGENEH: He goes, it is ridiculous. Last three words: I helped.
MR. ZANGENEH: Not that I told the truth, but that he helped them. Because that's exactly what he did. And they don't want you to think that.
MR. ZANGENEH: They want you to think that he came forward and told you 100% what took place. Now, he was arrested in May.
MR. ZANGENEH: He got appointed an attorney.
MR. ZANGENEH: The attorney gets the evidence. They go over the evidence with him. And unlike Ms. Kawass, who had to travel from Miami and see Ms. Magbanua, Chuck Collins and David Collins are locals.
MR. ZANGENEH: His local lawyers went to see him, and they went over the evidence, the majority of the evidence that you see.
MR. ZANGENEH: And this happened before he met with the government.
MR. ZANGENEH: So if the government wants you to think that she didn't spoon-feed him — well, she provided the evidence to his lawyer, who went over it and said, Mr. Rivera, we've got a big problem here.
MR. ZANGENEH: They have you, just you, on your cell phone going up there in June.
MR. ZANGENEH: And they have you renting a room. They have you renting a Prius.
MR. ZANGENEH: And, Mr. Rivera, you're a Latin King. And when it comes down to it, that's an aggravator for the death penalty, which they were seeking. So you want me to cut a deal? Yeah. And listen, I do call it the deal of laughter, because what did he have to do? What I initially came and I told you it was seven years — it's less. He has to do 19 years and he's doing twelve and a half in federal custody. Now, federal custody is different than state custody. It's a lot easier, a lot better. Luis Rivera, as the government indicated, you testified about recorded statements were made by Mr. Rivera. Do we have any of those in evidence?
MR. ZANGENEH: October 4th statement.
JUDGE HANKINSON: Mr. Zangeneh, I think you know, as I've explained to the jury, those are hearsay statements and they're not admissible in evidence.
JUDGE HANKINSON: As I've explained to you, jury, if there's something inconsistent in those statements, that's fair game and they present it. But those statements, along with the police reports and every witness statement in this case, are hearsay statements and they're not admissible.
MR. ZANGENEH: Make ten statements, ten statements. My client was interviewed for 45 — no, two minutes. You heard that statement. They played that audio for you. Interviewed my client, you heard that one.
MR. ZANGENEH: They brought it out, they marked it as an exhibit, they pushed play, and lo and behold, exactly what was said.
MR. ZANGENEH: Luis Rivera's testimony is what you take it to be.
MR. ZANGENEH: There's also jury instructions to give you guidance on how to determine, how to judge a witness.
MR. ZANGENEH: There's an enumerated list that you're going to get to go back into the room with you. It says weighing the evidence.
MR. ZANGENEH: Number one: did the witness seem to have an opportunity to see and know the things about which he testified? Did the witness seem to have an accurate — was he being honest and straightforward in answering our questions?
MR. ZANGENEH: Did he have an interest in how this case ended?
MR. ZANGENEH: Did his testimony agree with the other testimony and any money, preferred treatment, or benefit?
MR. ZANGENEH: A few others, which included felon.
MR. ZANGENEH: Five: did the witness at some other time make a statement that's inconsistent with the testimony provided in court? And you know there's about nine other statements.
MR. ZANGENEH: Luis Rivera gives you a story which starts like this. On June 3rd, Sigfredo Garcia approaches him and says, I'm doing a robbery, come with me.
MR. ZANGENEH: And he goes, okay, sure, let's go.
MR. ZANGENEH: Ported day.
MR. ZANGENEH: June 4th, their cell tower records get at 1:30 in the morning in Miami.
MR. ZANGENEH: And then on his trip, so somewhere in between, he starts heading north. Now, what did he tell you?
MR. ZANGENEH: He said, y'all listen, Sigfredo came to me and said, look, we got a robbery to do, let's go.
MR. ZANGENEH: So Luis Rivera wants you to believe that he went and purchased a gun from a black guy in the hood, okay, and then went and bought bullets, and then his testimony was, and then we dipped.
MR. ZANGENEH: Look at his phone records, look at what it says. Do you think there's a gun store open at 2 in the morning? These are reasonable things that you have to say — that doesn't make sense. You know, listen, the whole buying-a-gun thing, we deem that to be 100% completely not believable, okay?
MR. ZANGENEH: This is a person that has extreme knowledge of how crimes work. He's part of a nationwide criminal syndicate.
MR. ZANGENEH: What does he have to do?
MR. ZANGENEH: Hey, bro, listen, I'm coming up to Tal. Get me a gun.
MR. ZANGENEH: Get me a tool. That's what they call it, a tool.
MR. ZANGENEH: Get me a tool.
MR. ZANGENEH: He's not going to ride with a gun from Miami all the way up to Tallahassee? He's a convicted felon. That's a crime.
MR. ZANGENEH: That's a major crime.
MR. ZANGENEH: So he wants you to swallow that, okay?
MR. ZANGENEH: And then he says, well, Sigfredo also bought a gun, which was never recovered. There's no evidence of it. But he says, you know, because he wants culpability to go both ways, Sigfredo bought a gun too.
MR. ZANGENEH: Okay, so what did you guys do? Well, we did coke and we drank the whole way. At 3:13, say it's about a seven-hour drive, taking breaks, give or take. Let's just say he left. Well, it's a nine and a half hour drive. Sergeant Downing pulled him over. There's a record.
MR. ZANGENEH: shows lesson Was there anybody else? Is he ignored? That's what I check when no one else is in there. Nobody else was in the car. And what else did he say? Because, well, you know, he's a trooper and other law enforcement.
MR. ZANGENEH: If what Rivera was telling you was true, then Sigfredo Garcia must have consumed three to four grams of cocaine.
MR. ZANGENEH: I'm sure he doesn't have a glass table to do cocaine off of. So what does that mean? He probably took out his key.
MR. ZANGENEH: He did key bumps. There would be coke all over him.
MR. ZANGENEH: This would be a disastrous probable cause to search the car, which he purported had guns in it.
MR. ZANGENEH: Does that make sense?
MR. ZANGENEH: Does the evidence suggest that? Trooper Downing, let me tell you: 9 o'clock in the morning, a guy that's been on cocaine all night, someone that's been trained as a police officer for 10 years — guess what he's going to do?
MR. ZANGENEH: Get out of the car.
MR. ZANGENEH: Probably coke all over his face.
MR. ZANGENEH: You know why he didn't say that? A, he wasn't in the car, and B, it didn't happen.
MR. ZANGENEH: Are there records to show where Sigfredo Garcia was during this time?
MR. ZANGENEH: Magically, they're not.
MR. ZANGENEH: They're able to get everything they need, but on a trip that's material to their case, they don't have it. Just like when I asked the financial officer, I go, what about his bank records? Well, we have to search archives. We're not going to do that.
MR. ZANGENEH: God forbid.
MR. ZANGENEH: God forbid we make one other call and get information because it could hurt us.
MR. ZANGENEH: Luis Rivera, their linchpin, has married them to a story.
MR. ZANGENEH: This is the foundation of their case.
MR. ZANGENEH: So they're going to say, well, it's not just him.
MR. ZANGENEH: Chadrick Nobles comes forward.
MR. ZANGENEH: Now, Chadrick Nobles came in January of 2016.
MR. ZANGENEH: January of 2016, a year and a half later, they called him in because they think that he's part of a murder.
MR. ZANGENEH: What did they tell him?
MR. ZANGENEH: What he said?
MR. ZANGENEH: They did say it was videotaped.
MR. ZANGENEH: He testified to was that my client, if consuming, slags him down without knowing him when he's allegedly next to a gang member that has connections all over the state. Does that make sense?
MR. ZANGENEH: You know, in the world of improbable things to do, if you have Luis Rivera, somebody that wants to stay under the radar, allowing this to happen, it doesn't make sense.
MR. ZANGENEH: You know what also doesn't make sense?
MR. ZANGENEH: Chadrick Nobles, by chance, magically, on the next trip, sees him on the road, right?
MR. ZANGENEH: I mean, your antenna must have jumped up going, wait a minute, what a crazy coincidence.
MR. ZANGENEH: Yes, you know, I bought him a little coke.
MR. ZANGENEH: Did he get charged for that?
MR. ZANGENEH: No.
MR. ZANGENEH: Now, our position is, Chadrick Nobles probably didn't get him a little coke.
MR. ZANGENEH: He probably got Luis Rivera, through him or one of his associates, a lot of coke. Or bought a lot of coke. Because that's what it was.
MR. ZANGENEH: You know, when you go out for a day trip, that's a drug deal. That's what this was for Luis Rivera. A drug deal.
MR. ZANGENEH: Chadrick Nobles admitted it. Now, he changed the amounts and he changed the intention of it, but doesn't that make more sense?
MR. ZANGENEH: That he's going up there for a drug deal?
MR. ZANGENEH: Right?
MR. ZANGENEH: Because if you're going to go — and remember, hold on, let's go back. Let's go back to what Luis Rivera said. Around Orlando, which, let's say it's eight o'clock in the morning after about five hours, being on the road for at least five hours, his alleged best friend goes like, you know what? Just to let you know. It's not a robbery. We're going to kill somebody.
MR. ZANGENEH: Okay. Organized crime unit. Okay.
MR. ZANGENEH: I'm sorry. A crime gang.
MR. ZANGENEH: What is he going to say?
MR. ZANGENEH: What's the first thing that he's going to say?
MR. ZANGENEH: Where's the money?
MR. ZANGENEH: You think he cares about who they're killing?
MR. ZANGENEH: He's going to say, where's the money? How much do we have now? I'm going to kill somebody for free.
MR. ZANGENEH: Right? Does he say that? Does he ask where's the money? I mean, we've all seen movies. Hit men take half the money up front.
MR. ZANGENEH: No money is given. Or, more importantly, who's paying us?
MR. ZANGENEH: Who's paying us?
MR. ZANGENEH: Because I'm gonna go kill somebody. The person that's paying us knows who I am. They may need to be a loose end. Does he say any of these things?
MR. ZANGENEH: Candidly, don't you think that's the first — these are the conversations that you have on this monstrous trip. At least even from 8 a.m. till 12:30, right?
MR. ZANGENEH: Aren't they going to discuss where we're getting the money, who's the person that knows about this, who's paying us?
MR. ZANGENEH: Did he mention that at all?
MR. ZANGENEH: Wouldn't that be the first thing a criminal in a criminal organization would want to know? Not who we're killing — how am I getting paid?
MR. ZANGENEH: Where's the money coming from?
MR. ZANGENEH: And then if Sigfredo would have been like, I don't know, do you think he would have done it?
MR. ZANGENEH: We'll get back to some more of this later. But this foundation of their case, their own linchpin — and weak is an understatement. I don't think you can believe anything that he says out of his mouth. And if you do, go ahead. But remember what I am discussing with you, to discuss back there, because this matters. You know, just because there's a theory and there's evidence — there's common sense. Common sense has to fall in there somewhere. And we're only at June 4th. Okay? We're only at June 4th in a trip up. What Luis Rivera testified to was that they get there around 12:30, and then they went to bed, right? They've been up all night, according to him, drugging and driving and drinking and God knows whatever else he was saying.
MR. ZANGENEH: June 4th, Tallahassee, and June 5th, they had back bound of where he stayed because they bribed some homeless person.
MR. ZANGENEH: Which they clearly didn't do on July 17th when he rented a room under his name.
MR. ZANGENEH: And which clearly they didn't do, or Chadrick Nobles didn't do, on July 18th when he rented a room under his name.
MR. ZANGENEH: Questions on this trip that have to be screaming. I don't know if I can take Rivera for anything that he said. And let me culminate Rivera by saying one thing.
MR. ZANGENEH: His purported best friend — he picked him out in a second, right? Oh, yeah, that's a good — about the Latin Kings. Oh, man, I gotta bring them into this. He's protecting somebody. Maybe one of his Latin King brothers. Government said they cross-referenced Rivera's phone records of other Latin Kings. You don't think he called another Latin King from June to July?
MR. ZANGENEH: In October itself, there's three crimes that are caught on that wire that he confessed to, that he admitted to you. That does not form the theory of the government's case.
MR. ZANGENEH: So control, alt, delete.
MR. ZANGENEH: Don't think about it. Don't think about that, guys.
MR. ZANGENEH: Because that could create questions.
MR. ZANGENEH: The government wants you to believe someone — someone that's inherently unreliable, and that's who was right. And they said, yeah, he's a bad guy, but that's your bad guy. That's their bad guy. I know — back, I got pulled over, I got cut off today, and, uh, going down, uh, Monroe Road today, I thought that person was a bad guy. Nah, that's a bad guy. That's the worst of the worst. You know, the government's theory is that they believe Luis Rivera when he said, my client's the shooter.
MR. ZANGENEH: Do you think he would have gotten the deal that he got if he admitted to being the shooter?
MR. ZANGENEH: What's a shorter distance when you pull up behind somebody in their driveway — the driver or the passenger — when someone's parked in the driveway? The quickest person to get there is who?
MR. ZANGENEH: Someone that just walks right out, gangster style, bang bang?
MR. ZANGENEH: Someone that has to walk around the car, all the way around.
MR. ZANGENEH: And it's so funny that Investigator Yao said gangster style, because who's shooting who? A gangster killed Dan Markel. Luis Rivera killed Dan Markel. And you know what? It's common sense. Two and two has to equal four. He's admitted to being involved in these types of actions.
MR. ZANGENEH: That's his indictment. So let's get to a little bit more common sense. Let's get to the numbers. Okay, I'm gonna give you thirty-five thousand dollars. Supposedly, when Luis Rivera finds out that this is an actual murder — he even said, yeah, you know, people think I kill people, wink wink — so I'm gonna go ahead and do this, do this murder for 35 grand, right? 'Cause I'm gonna be the shooter. And then I don't know if it's a coming-of-Jesus moment or a lie.
MR. ZANGENEH: He says, well, I guess I didn't feel like doing it. There's kids involved.
MR. ZANGENEH: You don't think the victims of his robberies have kids?
MR. ZANGENEH: You think he cares about kids?
MR. ZANGENEH: If you do believe his testimony, if you do believe that he thought, because this man, this innocent man, had two kids, that he pulled back from a murder just to re-engage it a month later. And then here comes the best part.
MR. ZANGENEH: After refusing, allegedly, to do the murder, he claims that on the way up, on June 18th, during the trip — sorry, July 18th — that my client did it, and in addition to getting the money he was told he was going to get, he got a bonus for being an Uber driver.
MR. ZANGENEH: That's a real expensive Uber. You gotta think — my client hired him? Why would my client even go up there? Reasonable: hey, listen, I want you to take care of this thing, use money, go. This is not a two-man job. It's a one-man job. You don't see movies where you have two hit men go to sleep. It's one guy with a briefcase and gloves. That's what you see. You don't see a tag-team hit squad. It's one man. There's evidence that Luis Rivera admitted to — he's a drug dealer.
MR. ZANGENEH: There's evidence that Charlie Adelson — Government's like, there's no phone records, so there's no way that they could know each other. Miami Beach — they both live, Luis Rivera lives in Miami Beach, Charlie Adelson goes to Miami Beach.
MR. ZANGENEH: Luis Rivera sells drugs.
MR. ZANGENEH: I don't know if it's outside the realm of possibility if one day, when he's visiting Katie Magbanua, he's gonna say, can you get me some coke or some weed? Rivera gets called. Rivera comes by, and a deal's struck. It's beyond weak. So let's go to — let's go to the wiring, the electricity, the spark, or the motive in this case.
MR. ZANGENEH: Government wants you to believe that my client with Ms. Magbanua, to go commit a murder. Okay, let's break this down. Let's start off with the first thing that we've learned over and over in this case, is that Sigfredo Garcia could not stand — There's been testimony about it. There are text messages.
MR. ZANGENEH: There is one where Charlie Adelson says he wants to take — on July 25th, 2014, Charlie wants to — Charlie says he wants to take me deep sea fishing. I'll agree with Ms. Cappleman, that's a joke. You know why? Then at first he wants to kill me.
MR. ZANGENEH: He wants to take me out in the middle of the ocean, knock you out, have the fishes take care of you.
MR. ZANGENEH: July 25th — six weeks before this purported June trip that my client went on, there's no evidence. So we have July 25th. Now remember, they broke up in 2013; she goes out with him New Year's Eve 2014. Okay, we know that Charlie Adelson knows who my client is, because there's a text message in late — what I just talked about. So what does that mean? He knows about my client. Luis Rivera — what did he say? What did Luis Rivera say? There was a time in the summer before, they drove up to a restaurant where Katie and Charlie Adelson were, and he wanted to run them over.
MR. ZANGENEH: So, wants to kill him.
MR. ZANGENEH: Charlie Adelson agrees that he wants to kill him. And then on July 1st, on the wiretaps, you hear Charlie Adelson say, reminiscing about a time where he had jet skis. And how, you know, the guy with the two kids — my client — July 1st.
MR. ZANGENEH: angrily pulled his car behind and confronted Charlie Adelson. So definitely no April 25th. Definitely no July 1st. And there's so bright.
MR. ZANGENEH: Charlie Adelson, Katherine Magbanua on July 2nd, highlighting the July 1st incident.
MR. ZANGENEH: Okay. So hates his guts in April.
MR. ZANGENEH: Hates his guts in July.
MR. ZANGENEH: Even Ms. Magbanua's — I forgot her name — but even her, when I asked her, how angry was she about this? She gave a scale of 10, 11, and then 12 when I asked. Okay?
MR. ZANGENEH: Hates his guts.
MR. ZANGENEH: This reverts back to my initial question about Luis Rivera — if asked, hey, you want to go do a job?
MR. ZANGENEH: If Katherine Magbanua, as she's dating a man that drives a Ferrari, flaunts his wealth and his slicked-back hair for everyone to see — if you Google him, you see his face, you see his cars.
MR. ZANGENEH: If Katherine Magbanua came and said, listen, I got a job for you.
MR. ZANGENEH: It's 100 grand.
MR. ZANGENEH: Don't you think his first action is going to be — from who?
MR. ZANGENEH: Who's paying me?
MR. ZANGENEH: Who's doing this?
MR. ZANGENEH: You heard when the FBI went to talk to him.
MR. ZANGENEH: He's a pretty calm, collected, thought-out person. Where's this money coming from?
MR. ZANGENEH: They want you to believe that Katie either withheld this kind of information — the kind of information that Sigfredo Garcia would spend the rest of his life, or even death, to commit an act not knowing information. And listen, this isn't, hey honey, can you go down to the store and get me some milk?
MR. ZANGENEH: No questions asked? Yeah, sure, no problem. Can you pick up diapers? Yeah, sure, no problem. Can I borrow a hundred bucks? Yeah, sure, no problem. You want to make a hundred grand for killing someone you don't know?
MR. ZANGENEH: Huh?
MR. ZANGENEH: They don't want you to think about these pieces, because what do they do?
MR. ZANGENEH: They cut Sigfredo out of the equation.
MR. ZANGENEH: Because we know for sure how he feels about Charlie Adelson.
MR. ZANGENEH: We know how the government feels about Charlie Adelson, and Wendi Adelson, and Donna Adelson — they spent the first 21 minutes of their opening statement talking about the Adelsons.
MR. ZANGENEH: Now, Luis Rivera got the deal of a lifetime.
MR. ZANGENEH: After a year or six months, they arrested Charlie, and he admitted it was just me and Luis.
MR. ZANGENEH: Yikes, right? Right?
MR. ZANGENEH: But we don't know.
MR. ZANGENEH: Because the only people here, the only people that have been arrested, the only people in front of you — my client and Ms. Magbanua. Painting a picture, open your eyes for you guys to discuss some of these missing pieces. That's all, that's all I can do.
MR. ZANGENEH: My job is to point out problems and ask you to talk about them. But don't you think the issue as to why Katherine Magbanua — they told you, she's barely making any money. I'm gonna give you a hundred. And then here's the million-dollar question again: What money am I getting up front? How do I know I'm getting paid?
MR. ZANGENEH: They pull on the guy — pardon my language — the guy that's banging you is gonna give me a hundred grand? How do I know? What kind of deposit am I gonna hold up front?
MR. ZANGENEH: There's no testimony to any of this.
MR. ZANGENEH: I guess it was COD.
MR. ZANGENEH: I've never made a big deal about this bump. We've all heard about it — not the bumps that Luis Rivera was claiming my client took him on, a six-hour car ride, but the telephone bump. And the telephone bump really lets you think about where the government's mindset is. Because who did they — you know, they could get ten wires. They can apply and get wires for anyone that they believe was involved in this case. They knew Charlie Adelson was involved: they got a wire. They believe Katherine Magbanua was involved: they got a wire. They believe Sigfredo Garcia was involved. Now let me tell you why you should be thinking. According to the government, Luis Rivera, the person whose families are allegedly extorting him, is closest to who?
MR. ZANGENEH: Sigfredo Garcia.
MR. ZANGENEH: Wouldn't you want to hear what he did or didn't do as a result of who he called or didn't call?
MR. ZANGENEH: They didn't even get an application. They didn't even get a wire intercept for Sigfredo Garcia.
MR. ZANGENEH: They didn't want to listen to his vote. They wanted to listen to hers. And wherever Charlie Adelson is — probably at home, watching live in the comfort of his home. It played a tape, wire intercept call — I think it's called L or J. You can hear my client was angry. He probably found out the night before that the love of his life had been talking to her ex, and he'd probably been out drinking, because it's 8 o'clock in the morning and his speech is a little slurred. And what's the first — first thing he says? They didn't play it in the clip. He goes, I'm not going to make this call.
MR. ZANGENEH: And then she gets on him and he says, I'll make it — but he never does.
MR. ZANGENEH: He never makes the call, and they claim that he made a call — a hang-up. That's not a call. There's no conversation there. Does he appear to have a real interest in who's purportedly extorting him? Because remember, it's him too.
MR. ZANGENEH: His name is allegedly on this piece of paper, which we've never seen.
MR. ZANGENEH: But they say his name is on it.
MR. ZANGENEH: And if he was a real gangster, the way that they're portraying him — a real murderer — and someone's extorting him, I would assume he'd make a lot of calls.
MR. ZANGENEH: I would assume he would have made a lot of calls to a lot of lot of kings.
MR. ZANGENEH: Yet, here we are, with zero calls to listen to.
MR. ZANGENEH: Now, let's talk about the plumbing.
MR. ZANGENEH: Ms. Cappleman was kind enough to indicate to you guys during her closing that I didn't receive a check from Ms. Magbanua.
MR. ZANGENEH: And she says, well, I don't represent Ms. Magbanua. But guess who I represent?
MR. ZANGENEH: Her husband.
MR. ZANGENEH: I don't know what kind of shade that was to throw at me, or what kind of insinuation it is that they were trying to make.
MR. ZANGENEH: Look what they're doing.
MR. ZANGENEH: Attempting to make me appear to be improper.
MR. ZANGENEH: They're trying to shine a turd, pardon my language, in Luis Rivera. And then they're trying to discredit me. You got to think to yourself, why would they do this?
MR. ZANGENEH: Well, I'll tell you.
MR. ZANGENEH: There's an innocent man that was a father of two, a law professor, was killed in his driveway in Coppola.
MR. ZANGENEH: And at no point do I want you guys, with this analogy or anything I say, to minimize from what happened to Dan Markel.
MR. ZANGENEH: Luis Rivera has admitted liability.
MR. ZANGENEH: Let's talk about what stinks. Let's talk about his plea deal.
MR. ZANGENEH: Six — six and a half years is what he will have to serve in Florida State Prison.
MR. ZANGENEH: Six and a half years.
MR. ZANGENEH: Because he said that my client did a murder. And like I said before, he's the only one that says it.
MR. ZANGENEH: He's the only one that says it. He's the one that says that my client got out and ran around and shot him point blank.
MR. ZANGENEH: Well, what smells about the government's testimony before I say it? Remember, Investigator Yao was really tall. He was the ballistics expert, the gun guy.
MR. ZANGENEH: So before, when he had the one point of entry, 49 inches, he said someone between 5 feet and 6 feet tall could do the shoot.
MR. ZANGENEH: Two weeks before trial, came up with a new theory.
MR. ZANGENEH: Came up with a bunch of things that he was assuming to do what? Increase the height of the shooter.
MR. ZANGENEH: What?
MR. ZANGENEH: This is something you did a few weeks before trial, and what he did is he took a bunch of variables that don't exist, and he even admitted it. And what did the government say in their closing? Well, it was a tall guy.
MR. ZANGENEH: That's not what the evidence shows.
MR. ZANGENEH: The evidence shows it was someone with the one point of entry at 49 inches, someone between 5 and 6 feet tall. They say it's a taller person because Luis Rivera says it's a taller person, because Luis Rivera received a 19-year prison sentence where he only has to serve six and a half years for killing Dan Markel.
MR. ZANGENEH: Factors that a jury has to take into consideration when making a determination as to someone's involvement in a crime.
MR. ZANGENEH: I want to highlight a few things.
MR. ZANGENEH: The government says Sigfredo Garcia swapped cars. They say it like it's a fact. It's not.
MR. ZANGENEH: The evidence is he rented two cars. And the evidence shows that on June 4th, Luis Rivera was arrested in that car. That's what the evidence shows.
MR. ZANGENEH: The person from the rental car didn't remember there being a trade, just remembered a second transaction.
MR. ZANGENEH: Why is this important?
MR. ZANGENEH: Well, the government's like, well, he rented a car.
MR. ZANGENEH: It appears that my client was doing a lot of car renting before this. So much so that the owner of the Prius rental place wrote down my client's name and knew his number.
MR. ZANGENEH: Why is he renting cars? He can't afford a new one.
MR. ZANGENEH: He bought that horrific-looking 1984 — I'm sorry, I'm not a fan — I'm gonna call her Monte Carlo, for a few hundred bucks. That car broke down. He bought a Nissan, put $1,500 down. These are not extravagant purchases. He bought a motorcycle for 600 bucks. Luis Rivera jacked those numbers up. He said three thousand. He said twenty-eight hundred, thirty-eight hundred. The government had every opportunity to investigate the actual price. We have the documentation on the titles. They wanted you to believe Luis Rivera's number because it makes it seem like he spent. Let's go to the Prius. All right, Luis Rivera's testimony — he wasn't there. How do we know he wasn't there? Because the owner says, I wrote down Sigfredo's name because I know Sigfredo, because he rents cars from me. Renting a car is not a crime. Okay, what do we know? We know that Luis Rivera rented the car.
MR. ZANGENEH: We also know that Luis Rivera had the gun. Whether he got it down here from a black guy in the hood, or if he got it from one of his cohorts in his nationwide criminal syndicate on his nine-hour drive, he had the gun.
MR. ZANGENEH: And he admits it was only his gun, that he had one gun.
MR. ZANGENEH: One gun.
MR. ZANGENEH: One gun was taken on the murder date on July 18. For the trip: one gun, hotel, rental. We have a Prius in the Premier parking lot. And you have cell tower data that cannot conclusively place my client — my client's phone — in that parking lot. Look at the phone records. Remember Luis's testimony. He said Sigfredo had his flip-top, a flip phone, a bird, during that trip.
MR. ZANGENEH: There's an incoming text message and an incoming unanswered call at — not between — 9:30 and 9:50 in the morning.
MR. ZANGENEH: We have the Prius being out of the line of view at Premier for six minutes.
MR. ZANGENEH: The government wants you to believe that Luis Rivera and Sigfredo Garcia are in the car together because there's a photograph, screenshot, or a still shot of the Prius driving with a passenger that appears to be wearing a white t-shirt, right?
MR. ZANGENEH: It's July, it's summer, and I would venture to say that if you go to any basketball court in Tallahassee, half the kids on the court will be wearing white t-shirts.
MR. ZANGENEH: Wearing a white t-shirt in the summertime is like being a Noles fan at your stadium.
MR. ZANGENEH: It's not uncommon. It's not like it was a checkered shirt or there was indications of it. If you look at the picture, it's a short sleeve shirt. If you look at the picture on the other — on the camera at the bank — it's a long sleeve shirt. There's no direct evidence to put my client at the murder scene other than Luis Rivera. And I believe that we've made our position. We're gonna get back to Chadrick Nobles — I forgot about him. This young man told you on the stand that he lives in his car, and I don't think it's unreasonable to believe that someone that travels and lives in their vehicle — there's nothing wrong with it — rents rooms from time to time.
MR. ZANGENEH: And I think that this person, who admitted to being part of a drug deal, could have been facilitating another drug deal on the July trip.
MR. ZANGENEH: Now, here's an important question.
MR. ZANGENEH: Did they prosecute him for admitting to that drug deal?
MR. ZANGENEH: No.
MR. ZANGENEH: There is a jury that talks about this is still talk. I have a copy of this, and you'll be able to take it back to... You must consider the testimony of some witnesses with more caution than others.
MR. ZANGENEH: For example, a witness who claims to have helped the defendant commit a crime has been promised immunity from prosecution.
MR. ZANGENEH: Shift just back to Chadrick Nobles. He went and told cops he was involved in a drug deal, and he wasn't arrested.
MR. ZANGENEH: He assisted the prosecution while he was on probation.
MR. ZANGENEH: Probation violation? No. New law violation? No. He got a pass because his testimony fits their story. And the jury instruction specifically tells you, if someone is given immunity from prosecution, that's something you should consider in weighing their evidence. Now, are there other things to comport, or to confirm what he says? No.
MR. ZANGENEH: Didn't he tell us that there was a woman in the car with him?
MR. ZANGENEH: Right?
MR. ZANGENEH: He said there was a young lady in the car with him.
MR. ZANGENEH: Someone that allegedly was at both trips, the June and the July trip.
MR. ZANGENEH: Someone that would have potentially corroborated his testimony.
MR. ZANGENEH: Issues upon issues that I've asked you guys to consider.
MR. ZANGENEH: And things that I want you to look at and really talk about and think about, because as jurors you bring your real-life experience, your knowledge, and your common sense. Okay? And I know there's a lot of pressure. There is probably no bigger duty for a juror than to have to serve on a death penalty case. It's a lot. So what we're asking you is to listen to what I said and consider it and talk about it amongst each other and ask yourselves, do I feel comfortable convicting Sigfredo Garcia of a murder based on the evidence, based on the lack of physical evidence, based on the uncredible testimony of Luis Rivera, based on the fact that they believe the motivation came from a person that my client despised.
MR. ZANGENEH: Is it there?
MR. ZANGENEH: Beyond a reasonable doubt. To find guilt beyond a reasonable doubt is a very high standard. We do that because the foundation of this criminal justice system is to protect people, to make sure that when a jury of his peers makes a determination, that you have such an abiding feeling of guilt that your thoughts do not waver or vacillate. That means for a second that you don't know — you know what, I don't feel comfortable with this. I don't understand why there's holes here. I don't understand why he would do this. Look at the chart and realize that if you believe that he's guilty, you strongly believe it — that's not enough. If you think it's likely that he's guilty, that's not enough. And the chart goes on and on. And we ask you guys to listen to me. This matters. We understand it's a high-profile case. We understand that the media has been here. People are chomping to get to the Adelsons. I mean, clearly the government is — they spent the first 20 minutes of their opening on it. And let me tell you, rightfully so. Rightfully so. I would venture to say there's substantially more evidence against the Adelsons there than there is against Sigfredo Garcia. Substantially more. Motivation, documentation, ability.
MR. ZANGENEH: You review the jury instructions. Take into consideration the discussions that we've had.
MR. ZANGENEH: Look at things independently.
MR. ZANGENEH: Be skeptical.
MR. ZANGENEH: Be talkative. Have discussions.
MR. ZANGENEH: Don't jump because the government says jump.
MR. ZANGENEH: Question. That's what you're supposed to do. That's what you do in real life.
MR. ZANGENEH: Kind of like when someone says, hey, you want to kill someone for $100,000? Where's this money coming from?
MR. ZANGENEH: And like I said, ask the right questions.
MR. ZANGENEH: Do the right thing. And I'll tell you, at the end of the day, come back with, I'm not interested in buying this house.
MR. ZANGENEH: Come back with the right verdict.
MR. ZANGENEH: Thank you guys for your attention.
JUDGE HANKINSON: Alright. We gonna break for lunch. Let's try to keep this moving. Let's try to be back at 1.30. That's a little less than an hour. So let's be back, ready to go at 1:30. Either side need anything? I guess we need to discuss jury instructions for just a second.
JUDGE HANKINSON: I gave you a new version and I've emailed it to you. I think the only change of substance is in the second paragraph of the aggravation of a felony by carrying a firearm as to Garcia. But that second paragraph was kind of mixed up. It did not track the standard instructions, so I've made that change. Any objection to that, Mr. Zangeneh? I mean, that's — a copy was given to you yesterday, actually. All right. The other changes were more technical than anything. There was some things where it should have been plural where it was singular, vice versa. Was there something? And you wouldn't be heard on this... you looked over the minor changes. I may look over those. If anybody has objection, let me know. I think you'll find they were just — there was, yeah, I guess. And on the right to remain silent, I was not thinking. Actually the first paragraph applies to both defendants, not just to Mr. Garcia, so I made that plural. The second paragraph from that, that is only as to Mr. Garcia. But that was, I think that was one of three changes that I made. All right, have a good lunch. 1:30.
JUDGE HANKINSON: You may proceed, Mr. DeCoste.
MR. DECOSTE: The less you know, the better.
MR. DECOSTE: That's what Sigfredo Garcia said to Katherina Magbanua in 2016 over the wiretaps.
MR. DECOSTE: It's also what this government wants from you.
MR. DECOSTE: Because the more that you know about this case, the more facts, the more you realize that the pieces don't fit, and that she is innocent.
MR. DECOSTE: During voir dire, we talked about Prince Charles.
MR. DECOSTE: And we talked about perception versus reality.
MR. DECOSTE: He remembers the photo that we presented of Prince Charles and it gave a very limited view.
MR. DECOSTE: That's what the government has done here.
MR. DECOSTE: They've given you bits and pieces. They've tried to give you a perception of Katherine Magbanua's involvement because again, the more evidence, the less it fits the defense, and you remember this from voir dire.
MR. DECOSTE: We've given you the full picture.
MR. DECOSTE: Not them.
MR. DECOSTE: Ms. Cappleman can get up here and say, we gave you the information, we didn't do this bits and pieces thing. They did.
MR. DECOSTE: We had to, on cross-examination, over and over again, bring to you evidence that put their evidence in the proper light.
MR. DECOSTE: Let me give you a road — Roadmap. The first thing I'm going to talk about is how the investigation into Katherine Magbanua was not objective. The second thing, the dismissal testimony.
MR. DECOSTE: The third thing, how the government is ignoring evidence of Katherine Magbanua's innocence. Before we get deeper into it, the government, they talked about their burden. They have to prove two things: that a crime was committed, and that the person or persons they've charged were involved in it.
MR. DECOSTE: A majority of the evidence in this case, a vast majority of it, proves that a crime was committed.
MR. DECOSTE: It's all over there on that table.
MR. DECOSTE: Disagree with any of that evidence? We absolutely agree.
MR. DECOSTE: Look, I've spent years looking at this case. And if I've learned anything, Professor Dan Markel was a brilliant scholar, a devoted father, an amazing son.
MR. DECOSTE: For his family, no parent should ever have to bury a child, let alone sit in a courtroom and watch the first-degree murder trial, the gruesome first-degree murder trial, for their son. For the people of Tallahassee — and Ms. Cappleman said it best — suffered a blow.
MR. DECOSTE: Crimes impact everyone, especially this case.
MR. DECOSTE: Those who are responsible — and again, they spent hours, hours, days talking about the Adelsons.
MR. DECOSTE: Those responsible must be brought to justice.
MR. DECOSTE: The Adelsons.
MR. DECOSTE: Now, given all of this, all of this emotion, it's resulted in desperation for the government. You heard it from them. It took them a while to figure out a theory to move forward on the case.
MR. DECOSTE: But that's what happened. They came to a determination on their theory.
MR. DECOSTE: They came to a determination on their theory.
MR. DECOSTE: Then they started to look.
MR. DECOSTE: But when they looked at her, they didn't look at her to objectively investigate her.
MR. DECOSTE: Instead, they tried to build a case around her, to force her to cooperate, so that they could get what they've been going after for years now.
MR. DECOSTE: The Adelson family. Someday, they will likely be determining the fate of one or all the Adelsons.
MR. DECOSTE: But you're not that jury.
MR. DECOSTE: You're here, and again, these are separate cases. It's State of Florida, State of Florida, we talked about it in jury selection. These are not together.
MR. DECOSTE: It's not a package deal.
MR. DECOSTE: You're here to determine the guilt individually.
MR. DECOSTE: Katherine Magbanua.
MR. DECOSTE: You know, if the government wants to charge the Adelsons, charge them.
MR. DECOSTE: It appears that they have more evidence against them than the defendants in this courtroom. Years ago, many, many years ago, in our civilization, in times of strife, drought, we'd be willing to sacrifice the innocent for the betterment of all. But we all know we've advanced as a society.
MR. DECOSTE: What happened to Dan Markel was tragic, but convicting an innocent woman doesn't fix that, nor does it in any way honor the memory of Professor Dan Markel.
MR. DECOSTE: Now, two things the government has to do. The crime was committed.
MR. DECOSTE: There was a crime. He was murdered. We absolutely do not disagree with that.
MR. DECOSTE: But with respect to Ms. Magbanua, they have to prove that she was involved.
MR. DECOSTE: All of that has to do with it, which includes CDs, wiretaps. This is the case against her.
MR. DECOSTE: This right here, this is the evidence against her.
MR. DECOSTE: Our first topic: how the investigation into Katherine Magbanua was not objective.
MR. DECOSTE: Instead, it was to build a case because of what their target is. Let me give you some examples, and we saw it in this trial from some of the witnesses. And we saw the early stages of objectivity, the middle stages, and the testimony.
MR. DECOSTE: Investigator Jason Newlin took the stand.
MR. DECOSTE: He talked about how he got information about a gun, and he went out and found that gun, but how that gun didn't match up with the case.
MR. DECOSTE: But he didn't just leave it there. He didn't just dismiss it. No — took photographs of it. He brought out two other personnel from the prosecutor's office.
MR. DECOSTE: They cataloged it, turned it in, they checked it back out. They brought it to FDLE, and you heard from the FDLE analyst, Elizabeth Richey, how she went through a very extensive process of evaluating that gun — all the paperwork that she put together, all the review she did, that it wasn't a quick process. Now, that was very early in the trial, and it may not have made sense at that time, but it was for this explanation now.
MR. DECOSTE: That's what objectively reviewing a piece of evidence looks like.
MR. DECOSTE: Jason Newlin didn't just say, well, it doesn't apply, I'm not going to look at it. No. He still went through the proper steps, because if there isn't objectivity in this process, it leads to wrongful convictions, it leads to misunderstood evidence.
MR. DECOSTE: Next, we saw it from Shawn Yao.
MR. DECOSTE: He was the one that talked about the height of the shooter.
MR. DECOSTE: Now, he had a bunch of variables, sort of like the government has their pieces of evidence.
MR. DECOSTE: He knew the positioning of the seat, the height of Professor Markel, the point of entry in the window.
MR. DECOSTE: And he was able to come to not a certainty, but it's consistent with a taller shooter. But when I asked him, I go, you can't say that it could have been something else. There could have been a variable off.
MR. DECOSTE: The seat could have moved. He could have been in a different position. He goes, look, I can't do that.
MR. DECOSTE: That's looking at the evidence objectively.
MR. DECOSTE: I can't tell you beyond a reasonable doubt that the height of the shooter was this, but it's consistent with it.
MR. DECOSTE: Translation: it fits, but it's not enough.
MR. DECOSTE: Last, we saw from Sergeant Chris Corbitt, talked about the cell phone stuff — took the stand every other day in this trial.
MR. DECOSTE: He was asked questions about the cell phone stuff.
MR. DECOSTE: Some of my questions, that it wasn't accurate what he was saying.
MR. DECOSTE: Now, when I say not accurate, I'm not saying what he was saying was inaccurate, but that this whole thing with cell phone technology — when they show a map and there's a dot, it doesn't mean that they can prove that the person was there.
MR. DECOSTE: We heard it from Mr. Garcia's expert.
MR. DECOSTE: You can be miles and miles and miles away.
MR. DECOSTE: And I asked Sergeant Corbitt the question, basically you can say that these people were all in the general vicinity of Miami on a given time.
MR. DECOSTE: He gave those answers.
MR. DECOSTE: That's being objective.
MR. DECOSTE: He didn't try to stick to his guns and go, no, no, and fight it. Gave the good with the bad.
MR. DECOSTE: These are examples. We have both the investigation stage and the testimony stage. That's what objectivity looks like and should look like in this courtroom and during the investigation.
MR. DECOSTE: But again, the investigation of Katherine Magbanua was not objective.
MR. DECOSTE: When I was a kid, my father traveled a lot for business, and he told me a story once how he was out in the Midwest, and he's driving along the road, there's a bunch of farms, and he sees — and it's pretty close to the roadway — he sees the side of a barn.
MR. DECOSTE: There's a young kid out there, and on the side of the barn there's a few bull's-eyes, and there's an arrow right in the bull's-eye. He had to find out how is it that this kid is so good — little kid, how is he so good at hitting the bull's-eye? My father drove over, he asked him. The kid said, I'm going to show you.
MR. DECOSTE: The kid fired a shot into the side of the barn, wildly missing all of the targets.
MR. DECOSTE: But he hit the side of the barn. Then took a pail of paint, walked up, painted the target.
MR. DECOSTE: That's what the government is trying to do.
MR. DECOSTE: And we'll get into all the things they didn't do. They had leads. They didn't run it down. She worked at those nightclubs.
MR. DECOSTE: They didn't go there.
MR. DECOSTE: The idea was to paint the target around her, to force her.
MR. DECOSTE: Again, the government came up with their theory that it was the Adelsons. They identified Katherine, built the case around her.
MR. DECOSTE: Now, in part, I don't fault the government for being personally motivated, interested, but you've got to make sure that you don't turn a blind eye to other things.
MR. DECOSTE: The government has made a big issue that Charlie Adelson was communicating with Katherine Magbanua, and that Katherine Magbanua was communicating with Sigfredo Garcia.
MR. DECOSTE: Now, if there were no connections in between these people whatsoever, there may be some evidence.
MR. DECOSTE: But there were.
MR. DECOSTE: Katherine was dating Charlie Adelson. It's only natural that she's going to call him.
MR. DECOSTE: She has two children with Sigfredo Garcia. It's only natural that they're going to communicate. I don't doubt that most of the people in this courtroom, when they left for lunch, called the important people in their lives.
MR. DECOSTE: That's normal. That happens.
MR. DECOSTE: But the government, they gave you that very limited perception. They showed you certain days and go, they're talking.
MR. DECOSTE: They even removed out other communications that Katherine and others were having with other people, to make it look like the calls were going Sigfredo to Katherine, Katherine to Charlie.
MR. DECOSTE: We have it in evidence — in our evidence, not what they've submitted, in our evidence — showing there's more calls that are in there.
MR. DECOSTE: But it was important to pull a random day.
MR. DECOSTE: And during trial we pulled May 1st — not an important day in the case — to show that this was normal levels of communication for Katherine, again, the guy she was dating. Investigation into circumstantial evidence, cash deposits. They saw cash in her account and they presented it to you as unexplained cash, trying to paint those circles around the arrow brighter and brighter, thicker and thicker.
MR. DECOSTE: Investigator Isom took the stand.
MR. DECOSTE: He knew she was working at nightclubs — quote, knew. Zero investigation was done. There was no reason. And his answer was, it was an oversight.
MR. DECOSTE: Agent Sanford, his was, there was no doubt — quote, no doubt — she was making cash tips, which would explain this money coming into her account.
MR. DECOSTE: But zero investigation was done.
MR. DECOSTE: No subpoenas sent out.
MR. DECOSTE: No interviews.
MR. DECOSTE: The government had the audacity, despite the fact that it is their burden, to say in their closing argument, where are the witnesses?
MR. DECOSTE: They're the witnesses, as if we have a responsibility. Had the FBI walked into those nightclubs, I have no doubt they would have given answers. But again, they never did it. But why? Why would they not do this? The reason is, you go in there and you find out an explanation for that cash, those circles around that arrow start to evaporate a little bit. You lose a piece of evidence. Now, you may be thinking, well, you know, if they were just trying to frame somebody, why wouldn't they create it?
MR. DECOSTE: It's easier to just suppress it, to make it seem like you never knew about it. You create something, you got a problem, because there may be something out there later on that will contradict it. We'll see that when we talk about Luis Rivera.
MR. DECOSTE: It's better to just turn a blind eye, like the ostrich with its head in the sand. Not going to look at it. I'm not going to see it. It's willful ignorance. It has no place in a murder investigation. We didn't have to.
MR. DECOSTE: We presented evidence.
MR. DECOSTE: Now put it in context, our ability to get evidence. You know, Katherine Magbanua has been sitting in custody, in confinement, for years.
MR. DECOSTE: She was arrested years after this happened. The ability to then find evidence and put it together is a difficult process, but thankfully the government subpoenaed records from Facebook.
MR. DECOSTE: We had to submit to you. They presented it that there was no evidence whatsoever of cash-paying jobs.
MR. DECOSTE: We present it to you from 2005, following later, and continuing until 2005, working at a larger nightclub.
MR. DECOSTE: Now, there's one thing that the government didn't address, and I'm going to come back to the nightclubs.
MR. DECOSTE: The fact that Sigfredo Garcia, during that time, the father of her two children, was not working the steady employment he was working later on.
MR. DECOSTE: And that cash, similar to the $5,000 that was found inside of his car when he was arrested, would have been going to Ms. Magbanua for the betterment of her children.
MR. DECOSTE: The government brought up Yindra Velazquez, but you've got to remember what she said.
MR. DECOSTE: The government has tried to downplay the nightclub by saying "bar."
MR. DECOSTE: You know, how much would somebody make? A couple hundred bucks. We're talking about a nightclub in Miami. Not a bar — a nightclub in Miami, having special events for celebrities, having big, big, big nights.
MR. DECOSTE: She worked with Yindra Velazquez in a different location at a different time.
MR. DECOSTE: In the middle of 2014, Yindra Velazquez said, "I didn't know she was working there." Well, you've got to remember, during that time, Yindra Velazquez was pregnant with a child.
MR. DECOSTE: Katherine and her children were born several years old, they were leading different lives at that time.
MR. DECOSTE: The government presented a bar chart.
MR. DECOSTE: Put a spike right there.
MR. DECOSTE: First and foremost, if you're receiving money from a murderer, who in their right mind would deposit it?
MR. DECOSTE: Those are acts of an innocent person, not knowing where the money's coming from. You're not going to put that into a bank account.
MR. DECOSTE: Did Sigfredo Garcia put any money into his bank account?
MR. DECOSTE: No.
MR. DECOSTE: Luis Rivera?
MR. DECOSTE: No.
MR. DECOSTE: Those are the actions of somebody who's getting their money from legitimate sources.
MR. DECOSTE: So, again, the government has put this chart together.
MR. DECOSTE: They didn't exactly give their specialist, Mary Hull, all the information, though.
MR. DECOSTE: Despite having from Facebook, and knowing from Investigator Isom and Patrick Sanford — Agent Sanford — that she was working at nightclubs, they just presented it to her and go, "These are where she worked."
MR. DECOSTE: No mention of cash.
MR. DECOSTE: This is what this — and these dates are based on the evidence that we have, from their evidence and from the testimony of Ms. Magbanua.
MR. DECOSTE: Now, the government, in their closing argument, said, well, Ms. Magbanua was not able to answer specific names from work six years ago and four years ago.
MR. DECOSTE: Yet, at the same time, they're talking out of the other side of their mouth in voir dire, saying, well, you know, it's natural. People are going to forget some of the facts. It's okay for Rivera, not okay for Katherine Magbanua.
MR. DECOSTE: I don't think I need to get in. And we know that Luis Rivera has not been in solitary confinement.
MR. DECOSTE: And what day it is, what year it is, has
MR. DECOSTE: done a majority of the defensive work in this courtroom by fighting against, fighting against, even the thought that she was working a cash job.
MR. DECOSTE: They also brought in Mary Hull for another thing. Now, Mary Hull was brought in. She was given expert opinion.
MR. DECOSTE: She got up on the stand and she talked about the yearly totals.
MR. DECOSTE: was to say, look at 2013 and then look at 2014. Those dashes are — it was just presented to you, look at this, painting those circles bolder and bolder. It wasn't until she was on cross-examination with me that I brought out what I already knew: you don't have records — although you could have gotten them — you don't have records for half of the beginning of the year in 2016, for the remaining half. Her response was, "Well, that's why I put the dashes there." How are we supposed to know what that means? She's the expert. She should have explained to you: you can't compare 2013 to 2014, because — you want to know why? — we only have half the year. Late 2013 is when Katherine starts working doing brand promotion. This government wants to fault a young mother for working multiple jobs, trying to do anything she can, even if it means taking money from Mr. Garcia that may not be from honest places, but not knowing where it's coming from — for the support of her children.
MR. DECOSTE: Go next to Ms. Magbanua's breast surgery.
MR. DECOSTE: There is zero evidence — zero — that it was paid for from the proceeds of a homicide.
MR. DECOSTE: Ms. Magbanua explained to you she's wanted to have it for a very long time.
MR. DECOSTE: She's given birth to two children. It's something that she's wanted to do.
MR. DECOSTE: And the government gets up here and almost makes a mockery of it, trying to play on words in between tips and her surgery.
MR. DECOSTE: It's inappropriate in a first-degree murder trial.
MR. DECOSTE: Going back to Investigator Yao, Sergeant Corbitt, Jason Newlin, and talking about how you objectively view something.
MR. DECOSTE: You see those medical records — okay, it's a cash payment, there's debit card payments.
MR. DECOSTE: What would Shawn Yao say? He'd say, it fits that, it fits that. Sergeant Corbitt, same thing. But they didn't — they came in here and said this is evidence that she was involved, mind you the whole time knowing that she's working a cash job and just completely disregarding that. You know, it's interesting, meaning they had the opportunity to take photos of it, they had the opportunity to get the mileage, the condition, all of that. But no — they wanted to present before the jury she's driving around in the Adelsons' car, because it makes that target so much more bold, so much more bright. They didn't investigate further into it, nor did they ever look at it objectively. Because if you look at it objectively, you have a title for a purchase of a vehicle. Objectively viewed, that's somebody who has purchased a vehicle. All you can take from that is that she bought a — I'm not saying it's not a nice car, many of us would love to have that — but in comparison to the wealth of the Adelsons, who they've said are these multimillionaires, a 14-year-old Lexus with 160,000 miles is barely payment for helping commit a murder. What it is, it's a friend, an ex-girlfriend, buying an old used car from an ex-boyfriend. But they've submitted to you as proof — that's not objective — as proof of guilt. Let's common sense look at this, right?
MR. DECOSTE: Katherine's innocent bullets.
MR. DECOSTE: to then create this legal paper trail to this person that works. That's not how somebody — if you're committing a crime of that magnitude, you do not want to have any connections go to the paychecks. Now, now, the Adelson Institute submitted</reasoning>
MR. DECOSTE: to you money from the Adelsons, and she didn't work there.
MR. DECOSTE: Again, painting that target.
MR. DECOSTE: Along the same lines of common sense and how it would be foolish. Again, you're creating a paper trail, employment records, tax documents.
MR. DECOSTE: That would be a crazy thing to do if you want to distance yourself from somebody, should anybody ever get investigated or arrested in the future.
MR. DECOSTE: Now it was presented over to Mary Hull.
MR. DECOSTE: She came back and she did this diagram of paychecks, and almost like reading tea leaves, the government is trying to say this is evidence of guilt.
MR. DECOSTE: And Mary Hull got up there and goes, well, these checks are written before the date of work.
MR. DECOSTE: Nonsense, but for one or two that was cashed a few days early, were deposited by Ms. Magbanua after the dates of work. They didn't do anything to establish Donna Adelson's check-writing practices. They had Erika Johnson and Clariza Lebredo on the stand and didn't get into that topic.
MR. DECOSTE: They didn't have Mary Hull evaluate the check-writing practices for the other employees, but instead you want to read the tea leaves and say it's evidence of a murder.
MR. DECOSTE: You would think — and we're still on the topic of the Adelson Institute — you would think wanted so bad, you're gonna get some dental work on the house. They brought in text messages — or, in a first-degree murder trial, trying to interpret text messages for guilt. They submitted to you one where she got whitening gel from Charlie Adelson, but they didn't give you — again, we had to bring it in and show it to you.
MR. DECOSTE: How?
MR. DECOSTE: She's paying the Adelson Institute $206.50.
MR. DECOSTE: And we know from the text messages around that same time that it was because Katherine Magbanua, who did — she saw, Harvey, his son — I'm pretty sure could get a discount from dad for the person that helped commit a murder, if any of that were true.
MR. DECOSTE: But the text messages went even further.
MR. DECOSTE: These checks — and we know it from the government's exhibit — these checks began, text messages in Charlie Adelson, if that exact — the day before, or less. "How many hours I can dedicate. Thank you." Again, they tried to introduce text messages, say, well, that's what — wisdom teeth, isn't he taking out? I don't ever remember communicating with my dentist saying, I'll let you know how many hours I can dedicate, my availability. That's a text message about work, but they are so blind to this that they won't accept it, because in their mind, from the very beginning, Katherine is guilty, and they will only ever look at her through dirty windows. Argued that there was no evidence — they've said that a lot: well, there's no evidence of it, so it must not be true. During the — and I almost called an investigation, but it wasn't, because no investigative work was done. Investigator Isom knew that her job was to communicate with patients, came out on the stand. Nothing was done. On the wiretaps, on call RR and E — these are two calls from the wiretaps in 2016 — they're talking about her calling patients. But again, the government is still trying to defend against it and say, whoa, she was never at the location, and why would the Adelson Institute be paying for Charlie — Charlie Adelson? They're trying to split hairs. They're trying to divert the attention away from the fact she was working for him. That was earned money.
MR. DECOSTE: Call E talks about work as well, too. Call activity.
MR. DECOSTE: The government brought up the fact that there was a phone call to one of Luis Rivera's old phone numbers, but that's not what the evidence showed.
MR. DECOSTE: Rivera was on the stand and he said his number was 934-6615.
MR. DECOSTE: Agent Sanford was put on the stand by the government, and on cross — not on direct, on cross-examination — it was brought out that the phone number that he got in review and the phone number that he had in his report — again, this is the Federal Bureau of Investigation, I don't think that they're used to hearing no when they want things that they have the number of 935-6615. The government still wants to be able to argue and say, well, no subpoena was ever sent to find out who either of those phone numbers belong to. Be very easy for Luis Rivera, looking at the call records, which you would have in discovery, just making things up. But we'll get into that a little bit more later. The car rental in June. Now, we talked a little bit about cell phone activity. Now, they put a map up there, but what they're not showing you — what they're not showing you is all the other businesses, all those little squares that are in there. Those are city blocks. This is miles and miles and miles of territory. There are major highways in there. There's an airport — Miami International Airport, a massive airport right there. They never showed you any other days: June 3rd, June 9th. Now, that's their expert. He doesn't — plotting for that. It was easy for me to go in and look at the call records and say, look, you know, on this random day of May, it's the same activity. They're picking bits and pieces to put together this tapestry of the guilt. What they're not doing is looking at any of it objectively. This wasn't enough evidence for them. Admittedly, they didn't have enough, but they were still desperate. They still needed to move forward on the case. So in 2016, they tried to create some more, to get older circles. They did the wiretaps, they did the bump, and they also had the wiretaps. These wiretaps, they listened to her phone calls, secretly listening to her phone calls, talking to people that they believe she was involved in this conspiracy with. Hundreds of calls, hundreds of texts. Not one thing — not one, not one thing — of her being involved in this murder. Her needing to know less. Charlie Adelson and Katherine were communicating. It wasn't a regular — We brought that out on the stand, that before the bump — before anybody may think, hey, we might be getting listened to — that Charlie Adelson and Katherine Magbanua were still communicating.
MR. DECOSTE: So it wasn't just out of the blue, this bump happens and all of a sudden there's phone calls.
MR. DECOSTE: Now, the way the bump was done dictated the actions that then followed.
MR. DECOSTE: It was controlled. The undercover — and you'll be able to watch it again if you need to — reference Son, reference Katherine twice, and reference Tutu.
MR. DECOSTE: Now, the letter that was handed — we have to take the — actually written on there, and whether there were not other instructions.
MR. DECOSTE: How is it that the Federal Bureau of Investigation, with all of their resources, infinitely, doesn't have a copy of the letter that was handed for this huge operation? Now, this goes back to what I was saying before: it's easier to hide things than it is to create them. Meaning that if it's just, hey, we don't have a photo of it — if it surfaces years later to be like, oh yeah, that's what was in there, we have no idea of knowing what was written on there and how that then dictated the actions that then followed. But the government wants you to take it as evidence of guilt. Now, again, there's nothing in there talking about Katherine being involved in any of this, but they want to interpret action and inaction, what somebody would do, as if there's standard protocol for such a situation.
MR. DECOSTE: The response from Agent Sanford as to why there was not a copy of it: it slipped their minds.
MR. DECOSTE: Now, had the bump been uncontrolled, had it been that they just handed the piece of paper — well, five grand — and then you had that communication, that would be evidence of something. But they didn't do that. Now ask yourself why they didn't do that.
MR. DECOSTE: They didn't do it because the hope was to create communication, to paint those targets more. The proper thing to do, the objective thing to do: hand that flyer and see what happens. Plant that seed and see what happens. Tickle the wire and see what happens. Not give instructions on what to do.
MR. DECOSTE: I submit to you that Katherine was being used in those communications by Charlie Adelson, who, as Katherine said, definitely involved.
MR. DECOSTE: Now, she's saying that not because she has information about it, but she's seen what all of you have seen during this trial.
MR. DECOSTE: Again, you want to charge him, charge him.
MR. DECOSTE: In the first three phone calls — and we know this from Agent Sanford — that Charlie Adelson says to Donna Adelson, don't talk in the apartment.
MR. DECOSTE: Now, it's easy to understand the thing.
MR. DECOSTE: It's going to get us in trouble.
MR. DECOSTE: Now, the government talks about WhatsApp and how people can be communicating on WhatsApp when it helps their theory, but when it doesn't, and it explains things, disregard them.
MR. DECOSTE: Donna Adelson assumed that the ex-girlfriend was the most recent ex-girlfriend.
MR. DECOSTE: Look, if I say to my mother, "my ex-girlfriend," she's not going to think, well, is it one from high school, or is it the last one?
MR. DECOSTE: It's natural. That's a natural thing that a mother would do. But there's additional communications, there's additional meetings. Charlie is not sure; eventually he learns that Katherine's name was mentioned. But in that first phone call with Katherine, if they are involved in this conspiracy to commit murder, it would be like, "Look, somebody came up." There would be talk about it, but there would also be, "Don't say anything." Nowhere in any of those wiretaps do you ever hear, "Don't talk in the apartment. Don't do anything that's going to get me in trouble." It's actually the opposite of that, and we'll get into that in a minute. Now, a little bit more into the action. I can't say why Charlie Adelson did what he did, but certain things make sense. Our theory is that him and Sigfredo Garcia had an agreement. Now, the government wants to say that it was through Katherine Magbanua. Our position is it was not about Katherine Magbanua.
MR. DECOSTE: Now, when that happens, the bump happens.
MR. DECOSTE: Charlie Adelson can't call over to Sigfredo.
MR. DECOSTE: He's already working with the police. If I contact him, I'm going to get in trouble.
MR. DECOSTE: I've got to distance it. Katherine — the bump gave him the idea to use Katherine as a buffer.
MR. DECOSTE: Find out who it is. Call that number.
MR. DECOSTE: Think about this: if he believes, or he's involved in this conspiracy with Katherine, and he's thinking, hey, it could be the FBI, could be the cops — that he would say, hey, I want you to call that number, knowing that she could say something wrong, she could do something wrong to incriminate him? The reason why he was so confident with having her make those calls is because he knew she didn't know anything. Now, let's talk about the flow of knowledge. Let me know if you need to slide this back. It happens with Donna Adelson. It happens here: conveys the information over to Charlie Adelson. That information then goes to Katherine Magbanua, and we know that that information then goes over to Sigfredo Garcia. But when Katherine wants to know what is this about, the answer is, the less you know the better. There's no information flowing in between there. Now, from Agent Sanford — well, it was Investigator Dillmore who talked about the fact that he was contacting a friend to send text messages to certain people.
MR. DECOSTE: Luis Rivera identified that on the stand.
MR. DECOSTE: Investigator Dillmore, in reviewing Sigfredo Garcia's phone, saw that there were communications with T talking about Luis Rivera.
MR. DECOSTE: So, from the bump, one would think that if this is a conspiracy, the information is then going to flow back — but it didn't.
MR. DECOSTE: Agent Sanford said how there was a point where Charlie Adelson was sure it was the cops, and then he tells Katherine.
MR. DECOSTE: If it were set up in the way that they think it was, that information would have flowed back, and Katherine would have been the one telling him. Look, Charlie Adelson — turn out, bill, JV — can't understand any of it, much of it.
MR. DECOSTE: Katherine got on the stand. She could have lied, said, well, this is what was being said, that was being said — you can't understand it, this is what was being said, that was being said. Instead she said, look, I don't remember. To her, that wasn't a conversation about a conspiracy to murder his brother-in-law. It was just another day sitting down with Charlie, where he's talking about how his family is getting harassed and how her name had been put into it. She did tell you, "I didn't discuss a murder with him." And the government showed a clip of it and tried to say, well, he had that paper. Look, you all saw it. He had that paper — if it even was the same one — and had it in his lap. Never showed it to her. The very little portions that you can make out of it, what it is is Charlie giving hypotheticals of what Katherine should do and say to scare off the person.
MR. DECOSTE: And he's mostly describing himself.
MR. DECOSTE: Be afraid of me, because I may come back. I may do something.
MR. DECOSTE: But it was like all the other times for Charlie. It was just him talking and talking and talking.
MR. DECOSTE: Now, the government brought out the fact that the cops were not contacted.
MR. DECOSTE: We covered this a lot on cross-examination. Katherine wasn't bumped or called or texted. It wasn't her place. It wasn't her place to be calling the police, because it wasn't directly against her. And we see this more in call DD, quote: "I'm trying to get whoever is threatening your family and helping you guys out." These are not the communications somebody's going to be having if they're involved in a conspiracy to commit murder. Those aren't the communications that are going to be had. Now, they'll come back and they'll say, well, you know, it's code. I mean, no — that's hogwash. These are not the communications that you're going to have. And they say, well, nobody went to the cops. It was Katherine, the one — Katherine stuck in the middle. Stuck in the middle, not getting any information from Sigfredo, not getting any information, while finding out things later on from Charlie Adelson, who's getting frustrated: why is my name being mentioned? And she's the one that says, "I'm about to go." And she hates that she swore. And we even see it from her text messages — she won't even spell out swear words. "The effing FBI," thinking well wants the FBI — to go to the FBI, in the way that she said it, which was not a, you know, "I'm thinking about doing it." It's "I'm about to go to them myself." Those words would have never come out of her mouth.
MR. DECOSTE: Even at that point, it wasn't enough.
MR. DECOSTE: The only remaining piece of evidence — the only thing, which brings us to our second topic.
MR. DECOSTE: Second topic: Luis Rivera. Outright dismissal of the problems with his story. Not the facts — with his story.
MR. DECOSTE: We had approximately 40 witnesses testify during this trial. Maybe a little bit more.
MR. DECOSTE: Maybe a few less.
MR. DECOSTE: He is the only one. The only one. Mary Hull is not a witness to events.
MR. DECOSTE: Chris Corbitt is not a witness to events. The only one is Luis Rivera.
MR. DECOSTE: Now, the consensus among the Tallahassee Police Department and the FBI is that prior to Rivera it was not enough to arrest.
MR. DECOSTE: Now, arresting somebody is a much lower standard than trial.
MR. DECOSTE: There's a big difference between probable cause to arrest, which you heard about during trial, and beyond and to the exclusion of every reasonable doubt.
MR. DECOSTE: Rivera cooperated. Now, had Luis Rivera said Katherine Magbanua's name in August, when they were doing this — communicating through cans and lines, where Luis Rivera's in the other room with his attorney, and Ms. Cappleman's in the other room — if he had said Cappleman at that time, she would've been arrested the next day. But it wasn't until he finally realized, well, I've got to give them more.
MR. DECOSTE: We'll talk about that in a minute. I've got to give them more.
MR. DECOSTE: Because Luis Rivera couldn't say, well, yeah, Sigfredo Garcia was involved.
MR. DECOSTE: That wouldn't get him a deal.
MR. DECOSTE: If he wanted a deal, he had to give them something. He cooperates; the very next day Katherine is arrested.
MR. DECOSTE: To convict Katherine Magbanua — Katherine is innocent. She is innocent of all three of these charges. To convict her, you have to believe Luis Rivera, a man who cannot be trusted.
MR. DECOSTE: His testimony was a convoluted mess, full of contradictions.
MR. DECOSTE: From that convoluted mess, you can take two things, and only two things, that apply to Katherine.
MR. DECOSTE: Again, I don't doubt that this guy was in Dan Markel's driveway — not for a second. But the information that he gives against Katherine Magbanua, it's only two things: that he heard some phone calls, and then on July 19th Katherine paid money.
MR. DECOSTE: Now, the heard calls thing — that's an easy lie. It's an easy lie for him.
MR. DECOSTE: He has the reports. He has the police reports. And from Agent Sanford we know the basics, and from Sergeant Corbitt, the basics of the travel, the communication — that was in those reports. And he would have that information. Plus, he knows Sigfredo Garcia's habits of communicating with the mother of his children.
MR. DECOSTE: Easy — but he failed.
MR. DECOSTE: He said that on June 4th, on the trip up, that Katherine Magbanua and Sigfredo Garcia were constantly, constantly on the phone.
MR. DECOSTE: The answer to that, to quote Chadrick Nobles: nope. A 29-second phone call.
MR. DECOSTE: Throughout that entire time, there was a 29-second phone call. Again, this is Luis Rivera trying to give them something to get that deal.
MR. DECOSTE: Let's go to 7/19.
MR. DECOSTE: Another easy lie.
MR. DECOSTE: He has the reports. He has the details.
MR. DECOSTE: The general vicinity of people and places. It's easy for him to build his lies within that framework.
MR. DECOSTE: But another failed.
MR. DECOSTE: He said, oh, Katherine called me. Now, he knew that there was phone communication, but he didn't know the specifics.
MR. DECOSTE: Katherine called me.
MR. DECOSTE: Again, wrong.
MR. DECOSTE: Sergeant Corbitt got up there and he goes, no, it was Luis Rivera calling her.
MR. DECOSTE: The government will get up here and probably say this is a minor detail. It's a huge detail.
MR. DECOSTE: Because these are the pieces of evidence that Luis Rivera is giving.
MR. DECOSTE: And Luis Rivera is the sole witness against her.
MR. DECOSTE: He also said that he was at the barbershop, over at Ray's Barbershop on Biscayne.
MR. DECOSTE: Wrong.
MR. DECOSTE: He was in a different municipality. He was over in Miami Beach, and we know that from the record. So how and why — how and why did all this happen?
MR. DECOSTE: The guy was looking at the death penalty.
MR. DECOSTE: The evidence against him, strong.
MR. DECOSTE: He's already doing 12 years. Meanwhile, the government, desperate to do something with their case, and they cut a deal.
MR. DECOSTE: Now again, he'd get nothing for naming somebody who they already have. Sigfredo Garcia was arrested alongside Luis Rivera.
MR. DECOSTE: You're not going to get anything by naming the other guy that's already charged. You've got to name new people.
MR. DECOSTE: Desperate government, desperate Luis Rivera. They come to a deal where — and Mr. Zangeneh got up here and said that it would be about 19 years. No, remember, with gain time, he's only going to do a percentage of that.
MR. DECOSTE: Do 12, maybe 12 in federal custody.
MR. DECOSTE: Then there's seven. Maybe he does another four or five years.
MR. DECOSTE: For a guy like Luis Rivera, that's just a cost of doing business.
MR. DECOSTE: That's a cost of being a criminal. That's expected.
MR. DECOSTE: Now this whole thing about threats — that, you know, because he snitched, that he's a threat.
MR. DECOSTE: This guy's been the boss of a gang since he was 15 years old.
MR. DECOSTE: Different rules apply to him. Clearly they do, because he's in general population and he hasn't been touched.
MR. DECOSTE: That's why it happened.
MR. DECOSTE: Again, I've gone over it, but it's worth going over again one time — how Luis Rivera was able to do this.
MR. DECOSTE: He has reports that detail things — not to the level that you saw in this trial, but reports laying out the framework of things.
MR. DECOSTE: He's also got the media.
MR. DECOSTE: You've seen it during this trial, all over the place.
MR. DECOSTE: And it's been all over the place. He has TV in jail. He's got friends and family outside. He knew the facts.
MR. DECOSTE: He knew the theory. That gave him the framework.
MR. DECOSTE: Now, I'm not trying to say that anybody spoon-fed it to him and said, you've got to say this. I don't think that happened.
MR. DECOSTE: But I think that this guy, the head of a gang at 15 years old — that's a smart guy.
MR. DECOSTE: Be it either he figured it out himself or somebody told him, that's what he did.
MR. DECOSTE: But he could only think one-dimensionally.
MR. DECOSTE: He couldn't see how this would contradict other things later on, because the information he had was limited. The direction of the calls, the cell site data that was done on the stand here — he had the basics of it, but it's when you get to the details that you realize there's no way that he's correct. Now remember, he knew the theory they want, and he tried. He tried to give them Wendi Adelson. He knew that she was a target. He tried again, and he failed. Now, he said that on July 17th, that he saw Wendi Adelson at the house, and then Sigfredo Garcia said, that's the woman.
MR. DECOSTE: But his story — and this doesn't happen with the truth, you usually get worse over time.
MR. DECOSTE: But his apparently got better over time, because his original statement was, I saw Wendi at the house. Then it was with the kids. And then most recently, in 2019, it was, I saw Wendi.
MR. DECOSTE: We're going to come back to that in a second. But why would Luis Rivera be doing that? Why would his story be so motivated? He may have been on that witness stand, but in his mind he's still at defense counsel table, because the government still has him. It's within their power to say whether Luis Rivera has lived up to his end of the deal, whether they want to violate him or not. Now, this whole thing about the violation of probation — Luis Rivera didn't know about that until we told him.
MR. DECOSTE: They didn't tell him, his attorneys didn't tell him, nobody told him.
MR. DECOSTE: So there's the additional fact that he needs to make sure that he's not at odds with the State of Florida, because they can still potentially get him for 15 years. Back to July 17th.
MR. DECOSTE: His story is now he sees the kids walking into the house. It's not possible.
MR. DECOSTE: Doesn't matter who told him what, why. He's trying — he's trying to give up Wendi Adelson, because he knows that's going to better his deal. But it's not possible, and we know that, and this is part of the stipulation: that on Thursday, July 17, 2014, the kids were dropped off at 8:30 a.m. at Creative Preschool. What other woman with two children would be walking into Dan Markel's house with two young boys? It's Clearly Luis Rivera trying to lie and give up more people, because the more people — look, this guy's ruthless. He doesn't care about sending somebody away for his own good. His life is about taking from other people, and he gets a deal by taking from her.
MR. DECOSTE: His story, you know: "I got mad at Sigfredo, so you get on the phone with Katherine," and that happened before noon. But see, that's a problem. Every time he gets too specific, that's when he gets caught in a lie, because Sergeant Corbitt told us there is no phone call. There is no phone call from Sigfredo Garcia to Katherine Magbanua before the afternoon on that day. Now the government, in their desperation, tried to fix this with Sergeant Corbitt on redirect, and they pointed to a call much later in the afternoon to try to make it seem like, well, that's the call. But the problem was, that phone call was from Katherine to Sigfredo Garcia, not the other way around.
MR. DECOSTE: That's defensive work, and then he tried to give up Wendi.
MR. DECOSTE: On June 5th, he said that — and this is in one of his statements, one of the many different ones — he says that they get up there the next day, that they're following Markel, that they're following Professor Markel, and that they follow him to the creative preschool, and then they lose him.
MR. DECOSTE: Well, we know from Jeffrey Lacasse that that's wrong, because Jeffrey Lacasse had a memory of that time frame and said Wendi had the kids.
MR. DECOSTE: Professor Markel would not have been dropping off the kids or picking them up that day.
MR. DECOSTE: Now, there's other monitoring inconsistencies. The owl.
MR. DECOSTE: This is an easy one. You know, Luis Rivera spins a lie, he doesn't give a time frame, and he goes, "Oh yeah, then Katherine called." Again, there's normal communication between Katherine Magbanua and Sigfredo Garcia, so it's easy to tell this lie.
MR. DECOSTE: Going back to objectively investigating things — of course, the Tallahassee Police Department, the Leon County State Attorney's Office, the FBI, they sent a subpoena to either, because remember, he said two different things: it was Instagram, Facebook, minor inconsistency. But the problem here is nobody ever subpoenaed the records from those social media outlets to find out if the guy was telling the truth.
MR. DECOSTE: To paint those circles, or to try — but they don't do it for him.
MR. DECOSTE: My belief is they didn't trust him. We dig any deeper on this, it's going to show that he's lying. We dig any deeper on Katherine Magbanua, it's going to show she's telling the truth.
MR. DECOSTE: There were other inconsistencies. One, when he learned of it.
MR. DECOSTE: It was either before, it was during, or after.
MR. DECOSTE: Whether there was one gun or two guns, whether he was the driver on the first trip — but then there was a citation.
MR. DECOSTE: His defense to all that was, well, we were high and drunk.
MR. DECOSTE: But that didn't make sense, because Trooper Downing was like — I don't know if he was a captain, a lieutenant, but he was high ranking.
MR. DECOSTE: And he was like, if that were going on, if people were smoking marijuana, if they were drinking inside of a car, everybody knows that smell would be in there.
MR. DECOSTE: And an FHP trooper would have pulled them out, questioned him on that.
MR. DECOSTE: He's doing that as a defense to getting caught in a lie.
MR. DECOSTE: Because if he gets caught, he can go, "Hey, I was drunk, I was high."
MR. DECOSTE: He's not a dumb man.
MR. DECOSTE: And along that line, no, he was driving, because of the citation.
MR. DECOSTE: And I'm pretty sure most of the people in this courtroom know that when you get a driver's license in the state of Florida, you've got to take a monitored, written exam. Against the lies.
MR. DECOSTE: "Luis, we want you to look." "I can't read."
MR. DECOSTE: About forty witnesses in this case — all of them combined, all of the impeachment combined for all of the other witnesses does not equal the amount of times that this guy was impeached. He's smart, but when you're making up lies — and we all know the phrase, the devil is in the details — and that's where we were able to, by digging deep into what he was saying, to realize this guy is not telling the truth.
MR. DECOSTE: Who is he protecting? What is he protecting?
MR. DECOSTE: Despite many, many rehearsals, many times that he gave this statement, he still couldn't keep it straight. Despite help — help from the government — there's no recordings of some of the meetings.
MR. DECOSTE: No recordings. Why would that happen?
MR. DECOSTE: That's inexcusable. The Tallahassee Police Department doesn't have a policy that you can't record.
MR. DECOSTE: The FBI — Agent Sanford said, well, you know, it's our policy, we don't record under certain scenarios, but you always do a report. And when he was confronted with that — not in there, the one person he interviewed where there's no recording and no report. The only time. They don't even trust him. They don't even trust Luis Rivera. This man can't be trusted.
MR. DECOSTE: Investigator Isom thankfully did a report of one of those meetings, and he said how, at the beginning, Luis Rivera was sworn in to tell the truth and the whole truth. But he didn't say anything about a third trip. He didn't say anything about Wendi walking into the house — that came out years later. And he never said anything about King Little Anthony. Now this government, in their defensive work, is trying to say, hey, that's nothing to do with the Latin Kings. They're trying to protect their They're trying to say that there's no connection to the Latin Kings, but then Luis Rivera is saying King Little Anthony went up on a trip. Well, that's a connection.
MR. DECOSTE: No investigation done.
MR. DECOSTE: Nobody ever met with him.
MR. DECOSTE: Nobody ever tried to find him.
MR. DECOSTE: Conveniently, he's now dead, and nobody will ever know.
MR. DECOSTE: Whether Luis Rivera was telling the truth or not about this guy, I have no idea.
MR. DECOSTE: But all I know is that this government didn't do anything with it, and they're trying to fight against a connection when clearly their star witness is saying that there was a connection.
MR. DECOSTE: Let's compare Luis Rivera to another witness we had in this case. We had Jeffrey Lacasse, and everybody should remember Jeffrey Lacasse. He testified early in the trial, and he was a one-time boyfriend of Wendi Adelson.
MR. DECOSTE: Now, Jeffrey Lacasse was testifying about things many years ago.
MR. DECOSTE: His inconsistencies were reasonable.
MR. DECOSTE: Memories fade with time.
MR. DECOSTE: Excuse me.
MR. DECOSTE: At the beginning of the investigation, he was a suspect. Now, the government brought it up on close. We don't think Jeffrey Lacasse was involved, nor has any argument been made.
MR. DECOSTE: But at the beginning, he was a suspect.
MR. DECOSTE: And he was removed as a suspect because they objectively investigated him.
MR. DECOSTE: He showed bank records. They got surveillance from Walmart.
MR. DECOSTE: They spoke to him, and they cleared him.
MR. DECOSTE: Nothing like that was done with Ms. Magbanua.
MR. DECOSTE: But they had multiple recorded interviews. They interviewed this guy who they believed was a suspect. Again, this is before they've committed to their bogus theory. Jeffrey Lacasse is a suspect — look, you know, he's dating Wendi Adelson, he's possibly protecting her, he leaves town right around the time that it happens. Could be something there. But they objectively investigated him. They had multiple interviews, and they were recorded. He also gave a deposition. So, like Luis Rivera, he gave multiple statements. But when he got up on the stand, he had a reasonable memory of events.
MR. DECOSTE: He was able to remember things. You know, in line with Ms. Magbanua: I can remember some, I can't remember all of it exactly.
MR. DECOSTE: What was the name of the restaurant you were at?
MR. DECOSTE: That's reasonable.
MR. DECOSTE: Somehow, Luis Rivera, his memory gets better in time with things and worse in other areas.
MR. DECOSTE: It's because it's not based in reality.
MR. DECOSTE: It's based on trying to weave a lie.
MR. DECOSTE: Now, Jeffrey Lacasse was up there. He was not evasive. He answered the questions. Now, Jeffrey Lacasse, a professor at FSU, very smart guy. Book smart guy.
MR. DECOSTE: Luis Rivera, maybe not book smart, but definitely a street smart guy.
MR. DECOSTE: Again, hundreds of people underneath him, at the age of 15.
MR. DECOSTE: That's a born leader, and also a born criminal.
MR. DECOSTE: And Mr. Zangeneh went over this with you, talking about jury instruction, talking about people that are in Luis Rivera's situation.
MR. DECOSTE: Defendants who say they committed a crime with somebody else and are going to get a better deal by testifying.
MR. DECOSTE: This is the same instruction you'd have if, you know, a guy buying drugs is going to testify against a guy selling a small amount of drugs for low-level felony cases.
MR. DECOSTE: Never is it more applicable than in a case where the witness was spared the death penalty and got a few years on top of an already huge sentence on a federal case.
MR. DECOSTE: This seemed to have an opportunity to say that is no, because none of it is true.
MR. DECOSTE: His response to it: I was drunk and high, I don't remember.
MR. DECOSTE: Did the witness seem to have an accurate memory? Not at all.
MR. DECOSTE: because he was impeached by the actual facts in the case. Not other witnesses, not stuff that we've, but by the evidence in the case. The kids were in preschool.
MR. DECOSTE: There was no phone call. Was the witness honest with these questions? No. Did the witness have some interest in how the case should be decided?
MR. DECOSTE: They've got him by the neck.
MR. DECOSTE: He's looking at a violation of probation.
MR. DECOSTE: The witness's testimony, no.
MR. DECOSTE: The electronic evidence, the evidence that can't lie, cell phone records.
MR. DECOSTE: I don't think Creative Preschool is going to be lying. It's a stipulation between the parties, meaning it's true.
MR. DECOSTE: Has a witness been offered or received any money, preferred treatment, or other benefit? He gets to serve his state sentence in a federal facility, and the benefit will be the massive deal that he's got. Had any pressure or threat been used against him? Did the witness at some other time make a statement that is inconsistent with the testimony he or she gave in court? Multiple times.
MR. DECOSTE: Has a witness been convicted of a felony?
MR. DECOSTE: Federal racketeering case. Now, for those of you that don't know, the RICO statute, that's the thing that they use to prosecute the mob. This is for sophisticated crimes. These are for major crimes. And he's also got a murder conviction. He's pretty much checking every box on the jury instructions of why you should not trust him. But again, they want you to trust him — a guy who can't be trusted. The person that you must believe — you must. The case against Sigfredo is different. The case against Katherine Magbanua — you must believe Luis Rivera to convict. He cannot be trusted. We talked about that pile being a crime was committed, this pile being the evidence against Katherine. This testimony doesn't belong in either of those piles. Let's go back to the how and the why. Rivera — we've reviewed it. How and why are we here in trial? All the government, desperate, different area, perfect time.
MR. DECOSTE: Thank you.
MR. DECOSTE: Thank you, Your Honor.
MR. DECOSTE: Still on the topic of Luis Rivera.
MR. DECOSTE: The government brought up how, although he got most of the things wrong, he got some facts right.
MR. DECOSTE: Like, how would he know that Dan Markel was leaving town? Well, he had the evidence, but if he's in agreement with Sigfredo Garcia, he's going to know that information.
MR. DECOSTE: If — to clear that up — Charlie Adelson is in agreement with Sigfredo Garcia, he's gonna know that information.
MR. DECOSTE: And in the bullet hole — again, I don't doubt, he's in the trash now so I don't have his photo, but I don't doubt that he was up there.
MR. DECOSTE: But the government coming up here and saying, well, he got these — that's like a parent walking in and talking to the teacher of their child and saying, look, I know my kid failed the test miserably. Wouldn't fly in an algebra test. It sure as heck should not fly in a first-degree murder trial. Let's go back to the how and the why. We talked about Rivera — we know how and why he did what he did. The government, they're desperate for the Adelsons, who I agree clear motive, and as Katherine said, guilt with this. I want to feel and I want to think that it was not a matter of we're going to paint a target — that it was more a matter of their judgment being clouded, that it threw their focus off, that they then make a deal with the shooter. And we'll get to that. Luis Rivera was the shooter. Wendi Adelson, as we saw from their presentation, the one with clear motive — their witness. Again, we're talking about the how and the why. The why: Katherine — put pressure on her for cooperation, and then we'll get our case.
MR. DECOSTE: What they didn't count on, however, was that Ms. Magbanua was innocent. And here we are in trial.
MR. DECOSTE: Now, the government, during their cross-examination of Ms. Magbanua, offensively made the comment of a payoff.
MR. DECOSTE: First, and you know this, what attorneys say is not evidence.
MR. DECOSTE: It's a sign of their desperation.
MR. DECOSTE: There's no evidence of it. It was a baseless attack to try to plant a seed in your mind that she's sitting up there and testifying and has taken this case to trial for other reasons.
MR. DECOSTE: It's also offensive because there's no amount of money that you could pay a mother of two.
MR. DECOSTE: There's no amount of money that you could pay — but I know this, there's no amount of money that you could pay a mother of two to risk never seeing her children again.
MR. DECOSTE: So let me get this. Their thought is that Katherine sacrifices seeing her children so that Wendi can be with hers?
MR. DECOSTE: They can't see it. They can't understand it.
MR. DECOSTE: That she's innocent and she wasn't involved.
MR. DECOSTE: Did this murder happen?
MR. DECOSTE: Look, I'm in no position to get up here and say, well, but in looking at the evidence and looking at the facts, it's a more reasonable scenario of what happened. The government tried to say that there were no connections whatsoever between Charlie Adelson and Sigfredo Garcia.
MR. DECOSTE: But there were.
MR. DECOSTE: And again, it wasn't through Katherine Magbanua.
MR. DECOSTE: It was about her.
MR. DECOSTE: So let's talk about the position that each one of them were in. Charlie Adelson wanted the murder to happen. We know that from Jeffrey Lacasse.
MR. DECOSTE: He had money.
MR. DECOSTE: Sigfredo Garcia wanted Katherine Magbanua back.
MR. DECOSTE: We know that from multiple witnesses.
MR. DECOSTE: And he had the means.
MR. DECOSTE: The government's response to this theory is that there's no evidence of a connection in between these two gentlemen.
MR. DECOSTE: They asked Sergeant Corbitt on the stand, you've gone through hundreds of thousands of messages and iCloud information for Charlie Adelson.
MR. DECOSTE: Is there any indication of communication between the two? And his answer was no. And on my cross-examination, months before the murder, there was an indication of communication.
MR. DECOSTE: Now I'm not trying to say that communication happened that day, but it was clear.
MR. DECOSTE: Sigfredo Garcia was trying to get in contact, and Katherine Magbanua with her messages knew how to get in contact with Charlie Adelson.
MR. DECOSTE: Their response is, well, there's no cell phone communications from the numbers that we have. That presupposes that the communication would have only happened over the phone, or that there would have to be connection.
MR. DECOSTE: Maybe wild thought, they were communicating through other means because it was talking about a murder.
MR. DECOSTE: They want you to believe that there's no possibility that at any point in time Sigfredo Garcia confronted Charlie Adelson around the time of these messages.
MR. DECOSTE: He's driving me crazy about his objection about the two of them being together. They believe he walked into a garage and shot a man in the head, but that he doesn't have the ability to confront the man that's standing between him and the woman that he loves.
MR. DECOSTE: There's also the confrontation on July 1st.
MR. DECOSTE: We'll get into that more.
MR. DECOSTE: But there was a connection between the two of them.
MR. DECOSTE: Not through Katherine Magbanua, but about her.
MR. DECOSTE: But the government, their response: there's no evidence of this.
MR. DECOSTE: That's not how this works.
MR. DECOSTE: That's not their burden.
MR. DECOSTE: We talked about this.
MR. DECOSTE: It's not just a matter of them giving a reasonable explanation. They need to have enough evidence to prove that there is no other possible reasonable explanation, to give you enough letters — and you remember the example in voir dire — to get you to that point. Because again, just because it fits doesn't mean that it's the answer.
MR. DECOSTE: Mr. Zangeneh talked about the burden of proof for the protection of all of us as citizens and you as jurors, so that years from now there's not regret for having made a wrong decision.
MR. DECOSTE: That's why — those are the reasons why this burden of proof is so high.
MR. DECOSTE: Third topic.
MR. DECOSTE: Katherine.
MR. DECOSTE: Evidence of Katherine.
MR. DECOSTE: They have years worth of text messages. Years.
MR. DECOSTE: Hundreds of thousands of text messages with these people that they believe she was involved with.
MR. DECOSTE: Nothing about involvement in a murder.
MR. DECOSTE: Wiretaps. Months worth. Hundreds of hours. Nothing.
MR. DECOSTE: Her actions.
MR. DECOSTE: Now, you best believe, had she gotten rid of her phone number or phone, they'd be up here arguing evidence of guilt. But she didn't. She kept the same phone number up until she was arrested. She changed out her phone, just like most of us do with iPhones. I think I still have a 7, but some people, they replace them regularly, yearly, when the new one comes out. I'm not saying that's what she did, but the idea that she would still have the same phone years later — no, it's natural. You swap out phones. You upgrade your phone.
MR. DECOSTE: Sigfredo Garcia got rid of his phone. Luis Rivera got rid of his phone.
MR. DECOSTE: You would imagine that if she's involved in a conspiracy with these others, they would have told her, hey, this is what you got to do.
MR. DECOSTE: The deposits.
MR. DECOSTE: No deposits of cash for Luis Rivera, no deposits of cash for Sigfredo Garcia.
MR. DECOSTE: But Katherine Magbanua, right around the time of the homicide, deposits money into an account.
MR. DECOSTE: They want you to believe that she's smart enough to have pulled off this crime, but then stupid enough to have done that.
MR. DECOSTE: I talked about it in voir dire — you cannot be smart and stupid at the same time. Well, actually, I take that back, as Luis Rivera's tried to do it. She didn't flee.
MR. DECOSTE: Had she taken two steps when they tried to arrest her, they'd be up here arguing she tried to get away. We bring out the fact she didn't do anything. She continued with her life, continued with her children. And they want to say, well, that's not evidence of innocence. Normally, maybe that would be a valid argument. But when you have the level of publicity that this case has had — the father of your children's been arrested, Luis Rivera's been arrested, her name's getting dragged through the mud, probable cause affidavits for first-degree murder are released in the media, major outlets are doing specials on the case, she's born in the Philippines, speaks the language — somebody guilty would have left.
MR. DECOSTE: She stayed.
MR. DECOSTE: Let's go back to Luis Rivera.
MR. DECOSTE: Violent gang leader.
MR. DECOSTE: The lead investigators and agents on this case tried to dance around and go, well, I don't know about that.
MR. DECOSTE: Charged with murder. Head of a gang since 15.
MR. DECOSTE: Violent gang leader.
MR. DECOSTE: Convicted many times over.
MR. DECOSTE: RICO murder.
MR. DECOSTE: Supplies. He rented the car.
MR. DECOSTE: Rented the hotel.
MR. DECOSTE: Bought the bullets that
MR. DECOSTE: entered Dan Markel's head.
MR. DECOSTE: Bought the gun that fired those bullets. They made a deal with him.
MR. DECOSTE: No death, do it for a few more years, didn't tell him about the violation of probation.
MR. DECOSTE: A couple of years for that guy. Katherine Magbanua, college graduate, first time through the system.
MR. DECOSTE: Ms. Cappleman herself said, and it came out in evidence, as the key to her own freedom, she was willing to cooperate if she had any information, which she does not.
MR. DECOSTE: They'd probably give her the key to the city.
MR. DECOSTE: There's only one reason why a single mother of two young children would sit in custody for three years in confinement, risking it all.
MR. DECOSTE: She's innocent.
MR. DECOSTE: That is the only explanation.
MR. DECOSTE: Let's draw a comparison.
MR. DECOSTE: Let's draw a comparison over to Wendi Adelson, their witness.
MR. DECOSTE: Somebody who they believe was, I don't know, who they think is behind that, they believe is involved. Their witness, a trained attorney, had to be subpoenaed, had to be given — and the judge explained it — immunity. She laughed at them. Laughed at them. Ms.
MR. DECOSTE: Cappleman had her on the stand — somebody she believes is behind this — didn't ask her the tough questions. Had her on the stand and could have put her on the spot, and didn't do it. Now let's compare that witness over to Katherine Magbanua. Not an attorney. No immunity. Didn't have to testify. Everything on the line, subjecting herself to cross-examination, actual examination by Ms. Cappleman, by a trained and experienced attorney. Grilled on facts from years ago. Years ago, after years in confinement. Nothing incorrect.
MR. DECOSTE: She even confessed to what would be crimes — not reporting cash tips on her tax returns.
MR. DECOSTE: I don't condone it, but I'm imagining it's a very common practice when it comes to cash tips.
MR. DECOSTE: But she admitted to it.
MR. DECOSTE: What does that mean? It means she's forthcoming.
MR. DECOSTE: It doesn't mean that she was involved in a murder.
MR. DECOSTE: Now we did it for Luis Rivera.
MR. DECOSTE: Let's do it now for Katherine Magbanua. But before I do it, remember, this is not a civil case. Do you believe Katherine Magbanua more than Luis Rivera?
MR. DECOSTE: It's not that tug of war that we talked about in jury selection.
MR. DECOSTE: It's that rope in gym class hanging from the ceiling that the government has to climb all by themselves.
MR. DECOSTE: So it's not a matter of do you believe Luis Rivera more or Katherine Magbanua. If that were the case, I have no doubt that you would say, I believe Katherine Magbanua more.
MR. DECOSTE: But I'm not trying to draw a comparison in between the two. But it's important to evaluate for Katherine Magbanua.
MR. DECOSTE: Did the witness seem to have an opportunity, about them more than me, I know what it says, some interest in how the case should be decided.
MR. DECOSTE: It's in the case that they would know that received any money or threat that uses a case that began in desperation.
MR. DECOSTE: Charlie Adelson and Sigfredo Garcia, the connection — not through Katherine Magbanua, but about her. It is no coincidence — no coincidence — that right when the murder finally happens, Charlie Adelson, and we know it from the messages, we know it from Katherine Magbanua, ghosted her, broke up with her.
MR. DECOSTE: Wanting to say that there's no contact in between Charlie Adelson and Sigfredo Garcia.
MR. DECOSTE: Again, we know that in late 2013, and we know it from Luis Rivera, he was following them because he objected so much to it, that he was potentially calling Charlie Adelson. The progression of that is at some point in time you confront him.
MR. DECOSTE: Now, the one problem with the prosecution's theory — again, if you get deeper into it, things start to not make sense.
MR. DECOSTE: July 1st, there's this confrontation, there's this fight between Charlie Adelson and Sigfredo Garcia. Now, Sigfredo Garcia doesn't run up to Katherine Magbanua's window. He runs up to Charlie Adelson's window, starts pounding on it.
MR. DECOSTE: 17 days later the murder happens.
MR. DECOSTE: You can't resolve that. You can't figure it out under their theory. And in this whole thought — let me sidetrack for a second, because the government said something in their close, that potentially Katherine was playing the middle, and that Charlie didn't know that on the other end it was Sigfredo, and Sigfredo didn't know on the other end that it was for Charlie. Remember what Luis Rivera said. For the dentist's sister — and they would have known exactly, and everybody knew who the dentist was, that they're doing it for Charlie Adelson. But it doesn't make sense, 17 days before the murder happens, that these guys are fighting with each other, and somehow Katherine's caught in the middle of it.
MR. DECOSTE: What makes more sense is that the agreement was: you break up with her and get away from her, I'll do this for you.
MR. DECOSTE: But he didn't.
MR. DECOSTE: That trip in June to Key West was supposed to be — and we know it from Agent Sanford — the goodbye tour. But on July 1st, they're still hanging out together.
MR. DECOSTE: Was there a situation that Charlie Adelson felt that the other end didn't live up to their end of the bargain because it didn't happen in June?
MR. DECOSTE: Seventeen days later, after this argument, he's dead.
MR. DECOSTE: And Charlie Adelson breaks up with Katherine Magbanua.
MR. DECOSTE: Now, again, this is a case that began in desperation and it continued in desperation.
MR. DECOSTE: Luis Rivera and the government.
MR. DECOSTE: Rivera, he wanted his life.
MR. DECOSTE: He wanted his freedom. When I say life, I'm not saying outside. He literally wanted to live, because they were trying to kill him.
MR. DECOSTE: And he wanted his freedom.
MR. DECOSTE: The government, desperation, wanted to be able to move forward with their theory.
MR. DECOSTE: Now, their presentation shows this desperation.
MR. DECOSTE: They gave bits and pieces.
MR. DECOSTE: Because the more bits and pieces that you gave, the more information — that peg that they're trying to get into the round hole, all of a sudden it becomes more square, bigger and bigger, and it no longer fits. And they were also painting that target. We had to show the rest — the defense, we have to show the rest of that information. Now let me give you some examples of how they did this. The government wanted to draw the connection in between Katherine Magbanua and Wendi Adelson, right? And they presented this photo to you. Defense Exhibit 41. You haven't seen this yet. Versions of this photo. Now, these look the same, but if you look at this day, they present to you the photo without Katherine's credit paying for that day, paying for herself. But the attempts to guide you — guide is not the word — to give you the wrong perception, the limited perception of the case. Go back to Mary Hull, the income analysis, 2013. She didn't explain that. She didn't explain what those dashes were. And then they started talking about the deposit transactions and how Katherine was going to different banks to make deposits. Again, they have no information as to the location of these ATMs and their location in relation to each other.
MR. DECOSTE: One thing that we pointed out — this was normal, back on the same day.
MR. DECOSTE: Paint that picture, paint that target brighter and brighter.
MR. DECOSTE: It continued.
MR. DECOSTE: When they were talking to Sergeant Christopher Corbitt about text messages — and this happened yesterday — they actually only had him read part of the message, where Charlie Adelson offered to help out.
MR. DECOSTE: I had to get up and read the rest of it with Sergeant Corbitt, which was, "No, no, no, I'm good." And then enter in other text messages talking about how she was paying them back for loans.
MR. DECOSTE: One of the big pieces of that is the morning of July 19th.
MR. DECOSTE: Now again, the stuff with the cell phone locations — that's generalized areas.
MR. DECOSTE: Don't be misled by their evidence, believing that that means that somebody was at an exact location.
MR. DECOSTE: We know from the experts that I could be here with my phone, but pinging off a tower miles away.
MR. DECOSTE: But one thing that Luis Rivera said, he goes, the government had you corked up on the stand.
MR. DECOSTE: Offensively.
MR. DECOSTE: And this is their attempts to make their case fit, to misguide you.
MR. DECOSTE: They went and they referenced the 10:22 call.
MR. DECOSTE: They went first to the 10:22 call, because that's a call from Katherine Magbanua to Luis Rivera.
MR. DECOSTE: What they didn't do was point out — I had to come up on cross-examination with that information, as if you missed it yourselves, which I doubt — that the first call was from Luis Rivera to Katherine Magbanua.
MR. DECOSTE: It's offensive that the government, the ones that should be the most transparent and truthful in this, should be presenting this evidence correctly, but instead they're trying to argue the evidence in a way that fits their theory, instead of just being transparent, objective, and straightforward and giving it to you to make the decision. We had to do that. We shouldn't have to.
MR. DECOSTE: Conspiracy.
MR. DECOSTE: There was connection in between the two.
MR. DECOSTE: It was about Katherine Magbanua, not through her.
MR. DECOSTE: Now, the framers of our Constitution were genius in the way that they set up our government. The government has immense power. We all know that.
MR. DECOSTE: But there are limitations.
MR. DECOSTE: They can't elect themselves and they can't determine the guilt or innocence of a person. The reason why the framers took that from the government, from the judiciary, is that they feared that they would become biased, and that's why they entrusted it to the people, knowing that they were the only ones that could be objective in the review of evidence in a case.
MR. DECOSTE: The government's desperation — and I promised that I would come back to Luis Rivera one last time.
MR. DECOSTE: Their desperation led to blindness. I promise, I'm almost done. Their desperation has led to their blindness of facts.
MR. DECOSTE: Luis Rivera was the shooter.
MR. DECOSTE: Luis Rivera got up on the stand and he told you how Dan Markel was on the phone.
MR. DECOSTE: How Dan Markel put his arm up.
MR. DECOSTE: Explain to me how he could see in that dark garage and see all of this. He knows that because he's the one that pulled the gun on Dan Markel and killed him.
MR. DECOSTE: There's no way you're seeing that.
MR. DECOSTE: Ladies and gentlemen, this is what a wrongful prosecution looks like.
MR. DECOSTE: It's within your power to stop it from becoming a wrongful conviction.
MR. DECOSTE: Katherine Magbanua is innocent.
MR. DECOSTE: She wasn't involved in a conspiracy to murder Professor Dan Markel. She didn't solicit anybody. She was in no way involved with this murder.
MR. DECOSTE: In custody for three years.
MR. DECOSTE: It's time for her to go home.
MR. DECOSTE: Thank you, Your Honor.
JUDGE HANKINSON: State.
MS. CAPPLEMAN: Thanks for hanging in there with us.
MS. CAPPLEMAN: The defense talked about there was no investigation in this case.
MS. CAPPLEMAN: These officers scoured the earth for that Prius. They looked at hundreds of hours of surveillance.
MS. CAPPLEMAN: They pulled surveillance off city buses to find evidence in this case. And they pulled that needle out of the haystack.
MS. CAPPLEMAN: Hundreds of thousands of pages of phone records and financial records and other data was analyzed in this case. This was incredibly thorough. It took years.
MS. CAPPLEMAN: They drove from here to Tampa multiple times, mowed down the side of the road looking for a firearm. They got authorization to conduct 24-hour surveillance at this woman's residence and on their phones.
MS. CAPPLEMAN: I'm not used to being the defense, but I will tell you that the jury instructions that the judge has read you indicate that your feelings about the lawyer should not influence your verdict in any way. So to the extent that you think that I am this corrupt, desperate monster that Mr. DeCoste has portrayed, you must separate that from your evaluation of this case and base your verdict on the evidence in the case and the law that the judge has given you, and that alone. That is your oath as jurors. They have attempted to inflame you against me, to invoke your sympathy on behalf of their client, who has children, who is confined in the jail — she's on trial for murder, she'll never see her kids again. You're not supposed to let sympathy interfere with your verdict. Dan Markel will never see his kids again, and he didn't get a choice in that. She had a choice. And this trial is about her choices, not what I did, not what Luis Rivera did. He's already been convicted.
MS. CAPPLEMAN: He's not on trial.
MS. CAPPLEMAN: These two are.
MS. CAPPLEMAN: To suggest that these wiretaps somehow are not evidence of Ms. Magbanua being right in the middle of this thing is just — listen to them again.
MS. CAPPLEMAN: Listen to them again. And if those don't put her right in the middle, then I guess you know what you have to do.
MS. CAPPLEMAN: Possible motive — would I have to prosecute an innocent person? In what universe would that assist me in getting the Adelsons?
MS. CAPPLEMAN: Someone requesting a trial does not mean they're innocent.
MS. CAPPLEMAN: Every criminal defendant has a right to a trial.
MS. CAPPLEMAN: She didn't flee the country, so she must be innocent.
MS. CAPPLEMAN: She would never risk not seeing her children. A mother wouldn't or couldn't be capable of doing something like this. Well, who would be capable of doing something like this? So heinous, yet it happens. We all know it happens all the time. And we talked about jury selection — what does a murderer look like? Are they a certain race? Are they a certain creed? Are they a certain sex? No. They come from all walks of life, in every shape and size. Don't excuse her conduct because of sympathy. It is unfortunate, it is sad, it is sad for everybody involved. But this is about those defendants' choices, that are sitting across the room from Defense showed you a picture of the girls on the beach with a credit card in it. I can't see the name on that credit card. I don't understand how that means that she bought drinks that day, and I don't understand what in the heck that has to do with the murder. How did I hide or misguide you? With the defense's characterization of how this evidence was presented — but you got the evidence, and you all will make a determination as to whether or not it's any good. You've been instructed on the defense. A couple things: defendant statements, and also defendant testifying. Those were both in your packet of jury instructions, and we have one of each in this case. Defendant Garcia gave a statement to the police in which he indicated that he had never been to Tallahassee and that he knows lots of Luis Riveras — he couldn't possibly narrow it down to the one that's his best friend since childhood, the one he did a murder with in Tallahassee on July 18th, 2014.
MS. CAPPLEMAN: This statement is obviously untruthful, as it is completely refuted by all the other evidence in the case.
MS. CAPPLEMAN: The evidence against Mr. Garcia is overwhelming.
MS. CAPPLEMAN: He shot Dan Markel, a man he didn't even know. And they want to talk about, oh, they wouldn't be so stupid as to bring Chadrick into the motel. They shot this man in broad daylight in Benton Hills.
MS. CAPPLEMAN: They don't care about being stupid.
MS. CAPPLEMAN: What did he do it for? A few bucks, which he blew immediately to impress and win back Ms. Magbanua?
MS. CAPPLEMAN: His conduct is the very definition of cold-blooded. And defendant Magbanua chose to take the witness stand. We didn't hear very much about that.
MS. CAPPLEMAN: She doesn't know anything about the crime at all, so how can she be cross-examined? She don't know nothing.
MS. CAPPLEMAN: Even after the bump and her involvement in investigating the woman — I mean, the man — that approached Mrs. Marquez, uh, gosh, I can't talk.
MS. CAPPLEMAN: Even after the bump and her involvement, she was enlisted by Charlie to go investigate this person that confronted his mother. Even after that, she didn't know anything about the murder. She's telling y'all she didn't even know the man was killed, period.
MS. CAPPLEMAN: Until Garcia got arrested.
MS. CAPPLEMAN: What did we learn through her testimony?
MS. CAPPLEMAN: We learned that Sigfredo Garcia and Luis Rivera both have reputations for violence.
MS. CAPPLEMAN: That fits.
MS. CAPPLEMAN: We learned that she lied to Charlie Adelson about sleeping with Sigfredo Garcia, and she lied to Sigfredo Garcia about the fact that she was sleeping with Charlie Adelson. She was playing them against each other. She lied to Charlie Adelson multiple times about whether she was calling that undercover number, about knowing who Tudor and Tato are. She lied to Yindra about Dan Markel being in a car accident. She lied about not knowing what a burner phone was, and then later admitted to going to Walmart to get one. She lied to the IRS and filed fraudulent tax returns. She lied to DCF to scam the government for insurance while she saved up money to buy a breast augmentation. And she wants you to believe that she's telling the truth about having no knowledge about this homicide, not being able to remember virtually anything about the question she was being asked unless her lawyer put the answer in the question.
MS. CAPPLEMAN: She's telling the truth about having no memory as to what the conversation was between she and Charlie.
MS. CAPPLEMAN: When he's telling her about a Latin King threatening his mother and saying her name, I would think she'd be real interested in that conversation.
MS. CAPPLEMAN: But she has no memory of it.
MS. CAPPLEMAN: You have been told this whole trial that she was working remotely on a weekend basis for the Adelson Institute. They bent over backwards to tell us about how she was working, and she gets on the stand and says, I didn't work there.
MS. CAPPLEMAN: I didn't go on the weekends.
MS. CAPPLEMAN: I worked for Charlie as his personal assistant.
MS. CAPPLEMAN: Well, why is Donna stroking the checks if she's working for Charlie?
MS. CAPPLEMAN: She admitted that she got gifts from Charlie post-breakup. And I said, you know, we went through all the gifts, and some of them, they say, were loans and whatever. She got stuff from him and she was not dating him anymore. Why? And I asked her, why are you so special? Well, I know why she's so special — because she's got Charlie, she's got him, and he has to keep her happy. That's why she gets that stuff. That's why he called her to investigate the bump, because they're involved in this thing together. There was a hundred thousand dollar reward for information leading to an arrest on the unsolved murder of Dan Markel. Do you think this woman wouldn't have turned that number in in a heartbeat and collected that reward if she didn't have anything to do with it?
MS. CAPPLEMAN: Believe it.
MS. CAPPLEMAN: She also admitted that she was speaking in code on the wire and has no good reason for that. Why was she speaking in code?
MS. CAPPLEMAN: There's only one reason to speak in code.
MS. CAPPLEMAN: I mean, I'm trying to be cute.
MS. CAPPLEMAN: There is not a reason to speak in code when you're giving somebody a phone number.
MS. CAPPLEMAN: And then I would offer you the following question and answer.
MS. CAPPLEMAN: Question: did you talk to Luis Rivera on the day of the money drop?
MS. CAPPLEMAN: Answer: yes.
MS. CAPPLEMAN: So that kind of implies there was a money drop.
MS. CAPPLEMAN: Luis Rivera.
MS. CAPPLEMAN: Didn't say eight minutes. I'm sorry, you guys.
MS. CAPPLEMAN: All right. Luis Rivera.
MS. CAPPLEMAN: There's this idea out there that — I'll keep track of time, Ms. Norris. Oh, she's not right?
MS. CAPPLEMAN: Is it less than eight minutes?
JUDGE HANKINSON: No, you have 12.
MS. CAPPLEMAN: Okay, thank you. I'll only take eight. All right, so, Luis Rivera.
MS. CAPPLEMAN: The idea is that he did not say Katherine Magbanua was named in the initial meetings, and somehow he was told, you're not going to get a deal unless you say her name. This is just not true. Nobody has testified to that.
MS. CAPPLEMAN: The lawyer saying it does not make it true. We talked about his inconsistencies and we talked about inconsistencies at jury selection.
MS. CAPPLEMAN: If Mr. Rivera is smart enough to memorize this whole case — I can't even keep it straight and regurgitate it on command to you — then why doesn't he remember which trip he got the ticket on? You know, there are natural inconsistencies in his testimony. The man has a sixth grade education and reads on a third grade level, and they want you to believe he understood the evidence well enough to falsify the testimony to get all these little intricate things correct.
MS. CAPPLEMAN: I mean, the reason why you believe him is not because he's some great guy. He's the worst.
MS. CAPPLEMAN: He's a killer.
MS. CAPPLEMAN: You believe him because he's telling you what you already know. He's telling you what the rest of the evidence in the case supports and tells you.
MS. CAPPLEMAN: He's not studying the evidence and building his lies within that framework.
MS. CAPPLEMAN: They actually said he's a smart guy. The guy misspelled his own name on the witness stand.
MS. CAPPLEMAN: L-I-U-S.
MS. CAPPLEMAN: The man rented a car in his own name to come do a murder.
MS. CAPPLEMAN: Can't compare him to Jeffrey Lacasse, who is a professor.
MS. CAPPLEMAN: If he was going to lie to cut a deal, and if I'm so desperate to get the Adelsons, as they claim, why didn't I just tell him, or have someone tell him, to say the Adelsons hired him?
MS. CAPPLEMAN: And if the Adelsons actually hired him, as Mr. Garcia wants you to believe — I mean, as Mr. DeCoste wants you to believe, then why didn't he just flip on the Adelsons?
MS. CAPPLEMAN: He's flipping on his best friend from childhood and his best friend's wife. Why would he do that?
MS. CAPPLEMAN: If he was actually hired by Charlie Adelson, he would tell us that.
MS. CAPPLEMAN: Think about whether the inconsistencies that have been cited by the defense are truly inconsistent.
MS. CAPPLEMAN: Use caution in distinguishing between nitpicking versus an inconsistency that's going to constitute a reasonable doubt.
MS. CAPPLEMAN: Is the statement truly inconsistent, or is it a routine situation where the witness is failing to recall every detail?
MS. CAPPLEMAN: Does the witness appear to be fabricating his testimony?
MS. CAPPLEMAN: These are questions only you can answer when trying to evaluate any inconsistencies that were present in the witness's testimony in this case.
MS. CAPPLEMAN: And I would submit that saying things like "Wendi" in one statement and "the lady with the kids" in another is not a close call. Those statements are not inconsistent.
MS. CAPPLEMAN: When he got the speeding ticket, whether the picture of Dan Markel is black and white or color — all things that we don't really care about.
MS. CAPPLEMAN: And, I mean, you know, it's up to you.
MS. CAPPLEMAN: Why? Why?
MS. CAPPLEMAN: If he was not hired by Garcia, would he be giving up Garcia?
MS. CAPPLEMAN: It doesn't make any sense.
MS. CAPPLEMAN: The defense says Garcia would never do this job for Charlie Adelson.
MS. CAPPLEMAN: Well, that may be true, but you'd be surprised how much people would set aside for the right amount of money.
MS. CAPPLEMAN: He also would do anything for Katherine Magbanua, and she was the one asking.
MS. CAPPLEMAN: And thirdly, I'm not sure he knew he was doing it for Charlie Adelson, because he told Rivera they were there for Wendi.
MS. CAPPLEMAN: His understanding — Rivera's understanding, which he got from Garcia — is that they were there for Wendi, to help Wendi get her kids back. Not for Charlie. I mean, yeah, Wendi's the sister, but I'm just — I don't know, he was pretty mad in that phone call, I think, when he found out that Charlie was in the picture.
MS. CAPPLEMAN: The Wendi sighting. Okay, so the evidence was that it is possible that they saw Wendi on the sidewalk based on the phone stuff. Yes, the kids went to daycare that day. Could she have gotten them out of daycare? It's possible. But I think what's more likely — oh, I never heard him say that the woman he saw walked into the house, so y'all have to rely on your own memories. I thought he said he saw her on the sidewalk near the house, and she walked up the sidewalk toward Dan Markel's house, in that direction. So you've got these two guys driving around Betton Hills. They're sticking out like sore thumbs. They're high as kites. They're trying to basically do a murder, so they're probably paranoid. And they see a woman and a couple kids on the sidewalk. Garcia says to Rivera, "That's her, that's the lady." And what Rivera said is that when Katie called to tell them y'all got to get this done tomorrow, that they said, "We saw Wendi," or "We saw the lady with the kids." So that was my memory of the evidence. You guys rely on your own. Well, I have no reason to doubt that they saw somebody on the sidewalk. I cannot tell you that it was Wendi Adelson. I do not have that evidence.
MS. CAPPLEMAN: They have tried and tried to draw these links between Rivera and some other Latin King coming up here, or Charlie dealing directly with Sigfredo Garcia in the absence of Ms. Magbanua, but there's just no evidence of it.
MS. CAPPLEMAN: And you have to base your verdict on evidence. I mean, that's in the jury instructions. I'm not making it up.
MS. CAPPLEMAN: They have gotten creative in trying to, you know, do the deep-sea fishing thing, and you guys can take that back there and read the whole thing and make your own mind up.
MS. CAPPLEMAN: All right. It's a race.
MS. CAPPLEMAN: All right, so I want to talk just for a moment at the very end here about the shape of this conspiracy.
MS. CAPPLEMAN: It's like a train. They can be, you know, a cluster. They can be like spokes of a wheel. But in this case, it really kind of appears that each of these people are isolated from the other one.
MS. CAPPLEMAN: Donna's only connection to the conspiracy is Charlie.
MS. CAPPLEMAN: Charlie's connection goes down the line like that. You can't get from the engine to the caboose without going through the middle. And the middle is Katherine Magbanua.
MS. CAPPLEMAN: Why did she pay for Garcia's lawyer? Not because the lawyer did anything wrong. I'm not throwing shade at him.
MS. CAPPLEMAN: She paid for another co-conspirator's attorney. That's relevant for your consideration and to whether or not this is a conspiracy.
MS. CAPPLEMAN: Just, you know, all I want you to do is listen to the wire again if you have any doubts about these two's guilt in this thing.
MS. CAPPLEMAN: Just because Katherine Magbanua didn't come to Tallahassee or pull the trigger herself does not mean that she is not just as guilty as the ones who did. She hired Garcia, who in turn hired Rivera, and she's the conduit between Dan Markel and the man that put a bullet in his head.
MS. CAPPLEMAN: Without her, none of this happens.
MS. CAPPLEMAN: Without her, we're not sitting here today.
MS. CAPPLEMAN: I'm concerned that you'll get back there and say, "Well, she didn't pull the trigger, and we'll just do conspiracy and solicitation." Consider all of the offenses and evidence and whether it's proven beyond a reasonable doubt.
MS. CAPPLEMAN: Do not let concerns about sentencing or ramifications, sympathies, other things like that bleed into your deliberations.
MS. CAPPLEMAN: Katherine Magbanua is just as guilty as Sigfredo Garcia in this phase of the trial, where y'all are considering guilt for first-degree murder. The efforts to distract you from what this case is really about, including trying to make all these other links — think about Rivera, but also why do we believe Rivera? Because of the financial evidence, the wiretap, the phone activity, the iCloud messages, and the absence of any other reasonable explanation. That should all lead you to one conclusion. That image that I have It's the full picture.
MS. CAPPLEMAN: Not bits and pieces — the full picture. This is the clean window.
MS. CAPPLEMAN: Rivera was all in for this job. This was his best friend, whether it was a robbery or a murder or whatever. He would have been the shooter. It just didn't happen that way.
MS. CAPPLEMAN: Maybe not in front of the kids, but certainly he would have been the shooter.
MS. CAPPLEMAN: Rivera is not on trial, as I mentioned. He has been convicted of this crime. And yes, I do hope that every single person who has any culpability in the death of Dan Markel will be held accountable. Today y'all are going to decide about these two.
MS. CAPPLEMAN: Does Rivera have a network of criminals he could call on? Yes, but there's no evidence that he did that in this case.
MS. CAPPLEMAN: Reasonable doubt is not a mere possible doubt, a speculative, imaginary, or forced doubt. There is no evidence that Charlie Adelson was buying drugs from Luis Rivera.
MS. CAPPLEMAN: The defense says it's not outside the realm of possibility. Well, of course not. Very few things are. But that's not what we deal in in a court of law. This is reasonable doubt. It's not speculative, it's not possible. When you consider the big picture of this case, often the simplest explanation is a different what happened.
MS. CAPPLEMAN: Different explanations for the different pieces of evidence in this case. Oh, that spike of cash in July? Well, I was working in the clubs and I had the best month of my life in the club, and I can't remember anybody I was working with. You can explain away everything, and if it's one thing, then you can be very successful because, okay. But when you start to look at everything else — what about the wire? What about everything else? You have to look at the whole totality of the evidence in this case, and when you do that, you are going to come back to what this case is really about.
MS. CAPPLEMAN: Dan Markel. Justice for Dan Markel. And there is only one verdict that speaks the truth in this case and that does justice in this case, and that is a verdict of guilty as charged for both defendants. Thank you so much.
JUDGE HANKINSON: Go back to your jury instructions, page 13, please.
JUDGE HANKINSON: On page 13, "Submitting Case to the Jury." In just a few moments you'll be taken to the jury room by the bailiff. The first thing you should do is choose a foreperson who will preside over your deliberations. The foreperson should see to it that your discussions are carried on in an organized way and that everyone has a fair chance to be heard. It is also the foreperson's job to sign and date the verdict form when all of you have agreed on a verdict, and to bring the verdict form back to the courtroom when you return. During deliberations, jurors must communicate about the case only with one another, and only when all jurors are present in the jury room. You are not to communicate with any person outside the jury about this case until you have reached a verdict. You must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, Twitter, email, text message, or any other means. Do not contact anyone to assist you during deliberations. These communication rules apply until I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I've given in this case, you must tell me by giving a note to the bailiff. Many of you may have cell phones, tablets, laptops, or other electronic devices here in the courtroom.
JUDGE HANKINSON: The rules do not allow you to bring your phones or any of those types of electronic devices into the jury room during deliberations.
JUDGE HANKINSON: Kindly leave those devices with the bailiff while you deliberate.
JUDGE HANKINSON: If you need to communicate with me, send a note through the bailiff. If you have voted, do not disclose the actual vote in the note.
JUDGE HANKINSON: If you have a question, I will talk with the attorneys before I answer, so it may take some time.
JUDGE HANKINSON: You may continue your deliberations while you wait for my answer.
JUDGE HANKINSON: I will answer any questions, if I can, in writing or orally here in open court.
JUDGE HANKINSON: During the trial, items were received into evidence as exhibits. You may examine whatever exhibits you think will help you in your deliberations. The exhibits will be delivered to you shortly.
JUDGE HANKINSON: In closing, let me remind you that it is important that you follow the law spelled out in these instructions in deciding your verdict. There are no other laws that apply to this case.
JUDGE HANKINSON: Even if you do not like the laws that must be applied, you must use them. For more than two centuries we have lived by the Constitution and the law.
JUDGE HANKINSON: No juror has the right to violate rules we all share.
JUDGE HANKINSON: Great.
JUDGE HANKINSON: Let me talk just a little bit about what, as a practical matter, what's going to happen. We're going to begin deliberations. It's going to take a little bit for us to go through the evidence, make sure we're sending back to you what was placed in evidence, so be patient with us a little bit for that.
JUDGE HANKINSON: You will take breaks periodically during your deliberations. In other words, every hour or so you may take a break. But all deliberations have to be joint deliberations. You can't have any situation where some small group is deliberating. So if there's a break, everybody has to stop till everybody's back. In fact, we will feed you this evening. If we have not reached a verdict by about eight or nine o'clock, we're going to take you to a hotel. You can report to your family and those people that are concerned about your schedule, but please don't discuss the case with them, and please don't advise them where we're housing you. We don't need that to be public information.
JUDGE HANKINSON: So anyway, let's go sidebar for a minute.
JUDGE HANKINSON: Professor Barton, you need to remain here with us. The rest of you may step out, begin your deliberations, take your notes with you, take your jury instructions, your verdict form.
JUDGE HANKINSON: Even if you didn't make any notes, you want to take a pad. You may want something to write on during your deliberations. We'll be sending the evidence to you.
JUDGE HANKINSON: The attorneys can be going through the evidence.
JUDGE HANKINSON: And you have a number for him if we have another. Everybody be seated, please, or step out of the courtroom. The attorneys can be going through the evidence. We have alternates in this case. We started with two, we ended up with one. You're our alternate. I hope you don't feel like we're wasting your time. An awful lot goes into getting one of these cases going, and we didn't want to have to start all over again because we lost another juror. If we hadn't had alternates, frankly, we would have been done, uh, when this bondo got sick. So anyway, those things do happen. We do appreciate your time and attention. We still have a potential for needing you further. If there is a first-degree murder verdict as to Mr. Garcia, there will be a penalty phase proceeding.
JUDGE HANKINSON: I'm going to talk with the attorneys as to exactly when that will start.
JUDGE HANKINSON: It won't be this week. It'll be either next Monday or Tuesday.
JUDGE HANKINSON: I'm going to talk with them about the exact scheduling of that.
JUDGE HANKINSON: That will probably take two days. If that occurs, we will need you back for that.
JUDGE HANKINSON: Because of that, I would ask that you do two things for me. I would ask that you not discuss the case with anyone.
JUDGE HANKINSON: You may get solicited by media people wanting to know what your thoughts are. I would ask that you decline to discuss the facts with anyone until we resolve the case.
JUDGE HANKINSON: If it is resolved without needing to have another phase of the proceeding, then you're free to talk about it or not, as you see fit. We'll advise you what happens and we'll be in contact with you.
JUDGE HANKINSON: Barbara says she has a good number for you. Is that correct, Madam Clerk?
COURT CLERK: Yes.
JUDGE HANKINSON: We'll call you and let you know what's going on. It may be a couple days before we know what's going on, so don't be worried that you haven't heard from us. So in the meantime, don't discuss the case with anyone. Do you have any questions about what's expected of you? The clerk asked me to give you this note. I guess this is just an attendance letter. We appreciate — I appreciate you being with us, Deputy Granger. You're going to get him with court administration and get him safely on his way. Thank you, sir.
JUDGE HANKINSON: Have the attorneys the opportunity to go through the evidence? We're still doing it?
JUDGE HANKINSON: Why don't I go burn a copy of that? Is that the evidence list?
JUDGE HANKINSON: Oh, why don't I go burn a couple copies of that so everybody can have it? And I'll come back in about 15 minutes. That's the one for the jurors. Right, that's what I wanted to say.
JUDGE HANKINSON: I'll make the copy. I'll be back in about 15 minutes. I want to confirm on the record.
JUDGE HANKINSON: Any issues on the list the clerk's including with...?
MS. KAWASS: You know, you take them at face value. Right. But labeled correctly, everything is fine. Yeah, I don't think there's—
JUDGE HANKINSON: Magbanua was not involved in this discussion. So ya'll are free to go if you wish. We'll talk about a schedule for next week just in case we get a first degree murder verdict as to Mr. Garcia, need to discuss how we want to proceed. We do have a juror who has an ultrasound scheduled for Monday at 11 and she very much wants to be able to do that. I guess she's pregnant and this is the ultrasound to see how things are going. Just mention that, put in the mix on how we want to proceed. Does the State have a position on how you'd like to proceed?
MS. CAPPLEMAN: No, sir.
JUDGE HANKINSON: What if we started at 1 o'clock on Monday? How would that work for ya?
MR. ZANGENEH: That's fine with me. I mean, I think that we could — our presentation is, we have, we're going to be presenting more of this.
JUDGE HANKINSON: How much does this say?
MS. CAPPLEMAN: I'll say three witnesses, Judge.
JUDGE HANKINSON: How long, witnesses, do you think you're talking about?
MS. CAPPLEMAN: Three hours.
JUDGE HANKINSON: So we probably could get the evidence done Monday afternoon.
JUDGE HANKINSON: Oh, your witness is an expert witness. They usually take longer. So how long are you thinking she'll take?
JUDGE HANKINSON: Oh, it's not going to be blinked. So it would be I do hope to get the evidence done Monday afternoon, and then we can figure out the jury instructions Monday evening and presented to the jury Tuesday morning.
JUDGE HANKINSON: I mean, nothing ever goes exactly by plan, but that'd be kind of a working hypothesis for how we proceed.
JUDGE HANKINSON: That works for you.
JUDGE HANKINSON: It would, um facilitate jury instructions if we knew what you were wanting to say in terms of mitigating circumstances — have you discussed how you want to Do that. I mean, so I'm going to ask for Statutory, and then the catch-all — somewhat a list of different things. That is the only part that gets a little confusing. Yeah, yeah.
JUDGE HANKINSON: I tell you, it'd be more helpful if you'd get one before, say, 1 o'clock tomorrow, so I had the afternoon to work on it, so I hope to not work on it all weekend.
JUDGE HANKINSON: I have drafted some with just a blank space for mitigating circumstances. I've included what the state listed as aggravating factors in their notice. If y'all want us to, we can send those to you for your initial perusal.
JUDGE HANKINSON: Who do you want us to send those to, Ms. Cappleman?
MS. CAPPLEMAN: Me.
JUDGE HANKINSON: Okay. All right. All right.
JUDGE HANKINSON: Anything else we need to discuss?
MS. CAPPLEMAN: One thing, it's a mistake.
MS. CAPPLEMAN: This is 197, a court exhibit, which is a disc containing a PowerPoint that I presented in the closing. Would you accept that item?
JUDGE HANKINSON: You want make part of the record.
MS. CAPPLEMAN: I told them that I have to.
JUDGE HANKINSON: What's that?
MS. CAPPLEMAN: Yes, that's what I'm asking.
JUDGE HANKINSON: Is the defense seeking that? There were no objections to it. I'm not sure why.
MR. ZANGENEH: Just to make it part of the court record, Judge?
MR. DECOSTE: I believe that's correct.
JUDGE HANKINSON: You want that done?
MR. DECOSTE: I believe it should be.
JUDGE HANKINSON: What's that?
MR. DECOSTE: I believe it should be part of that.
JUDGE HANKINSON: Okay. We'll make it part of the record.
JUDGE HANKINSON: All right. Anything else?
JUDGE HANKINSON: All right. And you're prepared to deliver the evidence to the jury. You may do so, Madam Clerk. And we do have a court administration person. If they need technical assistance. Thank you.
JUDGE HANKINSON: We'll provide technical assistance.
JUDGE HANKINSON: We'll be in recess until we hear further from the jury.
JUDGE HANKINSON: Copies be given to the attorneys. Everybody's been given a copy of the questions?
MS. CAPPLEMAN: Yes, sir.
MR. ZANGENEH: Yes, Your Honor.
JUDGE HANKINSON: The questions, for the record, is one: circle — If person B accompanies person A with a shared intent to commit a robbery together, and person A commits premeditated murder during the robbery, but person B did not know a murder was intended — Is person B a principal to premeditated murder?
JUDGE HANKINSON: The second question is, does principal apply to conspiracy?
JUDGE HANKINSON: I've written a proposed answer. I'll read you what I've proposed, telling the jury: Dear jurors, one, your question asks me to apply the facts to the law. I am not able to do that. It is your job to apply the facts to the law. I can only answer legal questions.
JUDGE HANKINSON: Two, comma, the law of principals does not apply to the conspiracy charge in count two.
JUDGE HANKINSON: I'll hear from anyone that has any objection to that response.
MR. EVANS: Your Honor, the state disagrees that question one is asking to apply the facts to the law. It's simply asking the basic indication of what I think is jury selection to some degree, to explain principal. So the state would be requesting the answer to that question is yes.
MR. EVANS: And I don't believe there's anything that indicates — I'm not aware of a law that says principals doesn't apply.
JUDGE HANKINSON: You'll have to show me some law that says it does. Because it doesn't make sense to me that principals would — it could apply to conspiracy, which is simply — Agreement.
JUDGE HANKINSON: What's the defense position?
MR. ZANGENEH: We agree with the court, Judge.
JUDGE HANKINSON: Magbanua.
MS. KAWASS: Your Honor, we do agree that, we believe for question one the independent act instruction suffices. No one was charged with felony murder in this case. But as to two I agree with Your Honor.
JUDGE HANKINSON: I didn't quite catch you on one. Are you objecting to what I said?
MS. KAWASS: Okay. Sorry, no objection. And I agree with the court as to two, and I researched the issue, and you are correct that principals does not apply to conspiracy.
JUDGE HANKINSON: All right. I'll overrule the state's objection.
JUDGE HANKINSON: I'll provide this answer to the jury.
JUDGE HANKINSON: We'll wait to hear further from the jury.
JUDGE HANKINSON: So as I was intending to get everybody gathered up we got a question in the meantime. For the record, is Corbitt cell tower mapping available for our consideration? It's my understand that was presented as a demonstrative aid and it's not in evidence. Is that correct, Ms. Norris?
MS. NORRIS: Judge, there are four exhibits that were summaries from Sergeant Corbitt that were introduced in evidence. I don't know the exact exhibit numbers.
MS. NORRIS: No, not the court exhibits. There were four maps that were introduced into evidence as summaries.
MS. NORRIS: And then you are correct, the other demonstrative aids that were used in the course of his testimony were only court exhibits.
JUDGE HANKINSON: I'll simply tell them, uh, dear jurors, state exhibits 93 through 96 are maps related to cell tower information. The computerized maps were demonstrative aids and are not available as exhibits. Anybody have a problem with that?
MS. NORRIS: My only suggestion would be to remind them that they can consider the visual demonstrative that they were shown in aiding Sergeant Corbitt's testimony as to the location — you know, demonstrating the location of handsets.
JUDGE HANKINSON: I don't have any idea what you're talking about.
MS. NORRIS: They did view mapping during the trial where he was demonstrating the location of handsets.
JUDGE HANKINSON: I'm not going to comment on anybody's testimony. That's what you're asking me to do. That would be inappropriate.
MS. NORRIS: Can you explain to them what a demonstrative aid is? I'm just worried they would think they can't consider the mapping locations of the events he was describing.
JUDGE HANKINSON: I'll add that sentence: You will simply have to collectively remember his testimony as to any other cell tower mapping information. Anybody have a problem with that?
MR. ZANGENEH: No, Judge. If the Court would be kind enough to me back the note in it's entirety.
JUDGE HANKINSON: I said: Dear jurors, state exhibits 93 through 96 are maps related to cell tower information. The computerized maps were demonstrative aids and are not available as exhibits. You will simply have to collectively remember his testimony as to any other cell tower mapping information.
JUDGE HANKINSON: I'd — I promised the sheriff's department that we would not wait too late to send them back to the hotel — or send them to the hotel. So that y'all know what's going to — what the plan is, is that all jurors will be taken together by van to a hotel. They'll be kept together on a floor, separated floor, with them through the night.
JUDGE HANKINSON: Separate, they send them off for the night.
JUDGE HANKINSON: In the morning, it would save y'all having to be here exactly when they get here. Patience. — on their own. They're all going to be together, so it's not a situation separated to — to start deliberations, being brought into the courtroom first. If you heard my instructions to them earlier, I think my instructions were sufficient.
JUDGE HANKINSON: The only thing — I want to wait, if y'all wait a minute, I want to get the bailiff to go in and see what time they would like to start in the morning, so they all know what time they wish to start.
JUDGE HANKINSON: You don't have to be here.
JUDGE HANKINSON: Of course, be available on call.
JUDGE HANKINSON: Let's come back on the record for just a second.
JUDGE HANKINSON: Mr. Zangeneh, did you get the email from my judicial assistant? Did the state get the email with the jury instructions for the next thing? I'll have someone see if I want to talk to them. Okay. And the state received it?
MR. EVANS: Yes, sir.
MR. EVANS: I guess the only question, Your Honor, was the preliminary instructions — you're giving the standard?
JUDGE HANKINSON: I have some up. It's not standard, but there is a standard instruction. I have that. I'm not going to put it in writing.
MR. EVANS: I was just making sure that was in the final instruction.
JUDGE HANKINSON: I pulled up the standard preliminary instruction. I can fine-tune that.
JUDGE HANKINSON: Ya'll be available on-call by 8:45 tomorrow. Anything else from anybody?
JUDGE HANKINSON: We'll see you all when we hear from the jury tomorrow.