1.Closing Arguments, Final Jury Instructions, and Deliberation Questions
363 linesPROCEEDINGS
(Proceedings continued from volume XI as follows:)
JUDGE HANKINSON: Let's have the jury, please.
(Jury enters.)
JUDGE HANKINSON: All right. Good morning, folks. The next thing I'm going to do is instruct you on the law. You will be allowed to keep these written instructions. You don't necessarily need to take any notes unless we find a typo or something.
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. 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.
Members of the jury, I thank you for your attention during this trial. Please pay attention to the instructions I am about to give you.
Sigfredo Garcia and Katherine Magbanua, the defendants in this case, have been accused of the crimes of first-degree murder, conspiracy, and solicitation. 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.
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.
“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.
In Count I, Sigfredo Garcia and Katherine Magbanua, the defendants in this case, have been accused of the crime of first-degree murder. To prove the crime of first-degree premeditated murder, the State must prove the following three elements beyond a reasonable doubt: One, Daniel Markel is dead; two, the death was caused by the criminal act of the defendant; three, 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.
"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. The premeditated intent to kill must be formed before the killing.
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. Therefore, if you decide that the main accusation has not been proved beyond a reasonable doubt, you will next to need to decide if the defendant is guilty of any lesser-included crime. 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: One, Daniel Markel is dead; two, the death was caused by the criminal act of the defendant; three, 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.
To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt: One, Daniel Markel is dead; two, the defendant intentionally committed an act or acts that caused the death of Daniel Markel.
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 convict of 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.
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 the defendant -- 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. 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 a payment in exchange for the commission or promised 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. 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.
In Count II, Sigfredo Garcia and Katherine Magbanua, the defendants in this case, have been accused of the crime of conspiracy to commit first-degree murder.
To prove the crime of criminal conspiracy, the State must prove the following two elements beyond a reasonable doubt: One, the intent of the defendant was that the offense of first-degree murder would be committed; 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.
In Count ill, Sigfredo Garcia and Katherine Magbanua, the defendants in this case, have been accused of the crimes of solicitation to commit first-degree murder.
To prove the crime of criminal solicitation, the State must prove the following two elements beyond a reasonable doubt: One, the defendant solicited one or more persons to commit first-degree murder; two, that 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 act earnestly or to try to induce another person to engage in specific conduct.
voluntary intoxication resulting from the use of alcohol or a controlled substance is not a defense to a crime. 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. 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.
The defendants have entered a plea of not guilty. This means you must presume or believe the defendants are innocent. 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 crimes. The defendants are not required to present evidence or prove anything.
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.
JUDGE HANKINSON: 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. If you have a reasonable doubt, you should find the defendants not guilty. If you have no reasonable doubt, you should find the defendants guilty.
It is up to you to decide what evidence is reliable. You should use your common sense in deciding which is the best evidence and which evidence should not be relied upon in considering you 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. Some things you should consider are:
1. Did the witness seem to have an opportunity to see and know the things about which the witness testified?
2. Did the witness seem to have an accurate memory?
3. Was the witness honest and straightforward in answering the attorneys’ questions?
4. Did the witness have some interest in how the case should be decided?
5. Does the witness's testimony agree with other testimony and other evidence in the case?
6. Has the witness been offered or received any money, preferred treatment, or other benefit in order to get the witness to testify?
7. Had any pressure or threat been used against the witness that affected the truth of the witness's testimony?
8. Did the witness, at some other time, make a statement that is inconsistent with the testimony he or she gave in court?
9. 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.
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. However, if the testimony of such a witness convinces you beyond a reasonable doubt of the defendants’ guilt or the other evidence in this case does so, then you should find the defendant guilty.
One of the defendants has become a witness. You should apply the same rules to consideration of her testimony that you apply to the testimony of 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. The witness should not be discredited by talking to a lawyer about his or her testimony.
You may rely upon your own conclusion about the credibility of any witness. 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. It is up to the State to prove the defendants’ guilt by evidence.
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. 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 in -- 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.
These are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict:
1. 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. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.
2. 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 in evidence, and these instructions.
3. This case must not be decided for or against anyone because you feel sorry for anyone or are angry at anyone.
4. Remember, the lawyers are not on trial. Your feelings about them should not influence your decision in this case.
5. Your duty is to determine if the defendants have been proven guilty or not in accord with the law.
6. whatever verdict you render must be unanimous; that is, each juror must agree to the same verdict.
7. 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.
8. 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.
Deciding a verdict is exclusively your job. TI cannot participate in that decision in any way. Please disregard anything I may have said or done that made you think I preferred one verdict over another.
A separate crime is charged against each defendant in each count. The defendants have been tried together. 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.
You may find the defendants guilty as charged, or guilty of such lesser-included crime as the evidence may justify, or not guilty.
If you return a verdict of guilty, it should be for the highest offense that has been proven beyond a reasonable doubt. If you find that no offense has been proven beyond a reasonable doubt, then, of course, your verdict must be not guilty.
The verdict must be unanimous; that is, all of you must agree to the same verdict. Only one verdict may be returned as to each crime charged. The verdict must be in writing, and for your convenience, the necessary verdict form has been prepared for you.
(A pause in the proceeding.)
JUDGE HANKINSON: All right. So everybody should have two verdict forms. Does everybody have two verdict forms? Let's start with the one titled Sigfredo Garcia. There is a slight difference in the verdict forms. I'll make sure to point that out.
I think it's pretty self-explanatory but let's look at the verdict form. As to Count I, 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 I 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 the 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 a firearm causing great bodily harm or death, discharged a 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, which it starts at the top with 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 IL.
As to Count II, it's fairly straightforward. The defendant is guilty of conspiracy to commit first-degree murder or not guilty. You would sign the unanimous choice of the jury. As to Count ill, the defendant is guilty of solicitation to commit first-degree murder, the defendant is 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 have 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 Count I: 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.
And Count II, it's either conspiracy to commit first-degree murder or not guilty. And on Count ill, same, either guilty of solicitation to commit first-degree murder, not guilty. Be dated and signed by the foreperson. So when you get through, you should have three check marks on the verdict form there, and it'll be signed and dated by the foreperson.
I'll give my concluding remarks after the attorneys have made their closing arguments. 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. 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 argument; Garcia, make argument; Magbanua, make argument; and then the State has the opportunity to make a rebuttal argument at the end.
Ms. Cappleman.
MS. CAPPLEMAN: May it please the Court, Counsel.
Members of the jury, good morning.
JUDGE HANKINSON: Modern technology at play.
(A pause in the proceeding.)
MS. CAPPLEMAN: All right. Members of the jury, the evidence has shown that on July 18th, 2014, this community suffered a blow when revered law professor, colleague, son, father, brother, and friend was gunned down in broad daylight in his own home.
what enemy or enemies had Mr. Markel made that set into motion such a brutal act? The answer: His own family. 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. 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.
what was the motive for this murder? Wendi Adelson characterized her divorce as unpleasant, but the evidence shows that that is a severe understatement. when they separated in 2012, wendi Adelson left with the children while Dr. Markel was away on a business trip. This is from State's 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. 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. On September 25th, 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 parties’ 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 reside 20 minutes away. The children are very close to the wife's parents.
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. Quote, The wife proposes that during the 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.
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.
In 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.
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 Stewart Schlazer, somebody that he was reaching out to, to try to get information about the kids’ schooling or schooling prospects for the kids.
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. Quote, Once examined in context, the sole reason the wife wishes to relocate with the parties’ 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. 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 e-mails that were introduced as State's 80. This e-mail is from Donna Adelson to wendi Adelson and it's dated May 3rd, 2013: "However, Jibbers 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 nonnegotiable. Those trips need to be coordinated with a very angry man. Danny thinks he's very important and has always -- he always thinks his needs come first.
"However, a hot temper and verbal abuse is what you need to emphasize you suffered under his reign. 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.
"It's super important for the judge to get the message that this guy is a big bully. I know she'll be able to read that when you submit copies of some -- that when you submit some copies of the e-mails he sent you. He feels if he says 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 for however many 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 6th, 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. 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.
On May and July of 2013 -- I've gotten ahead of myself here. May and July of 2013, there were two mediations conducted in this divorce, both of which resulted in an impasse. 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 -- the wife and her affluent parents who are bank rolling the wife's litigation so they can enjoy closer access to the grandchildren.
MS. CAPPLEMAN: Again, an e-mail -- these are in chronological order, so this next e-mail is dated Thursday, June 25th, 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 Jibbers 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/act between now and July 31st. You can be a good actress when you want to. I've seen you in action. You just need to put on the performance of your life. Jibbers hasn't beaten the Adelson family yet. You have a very strong family behind you. Just remember that. Dad and I have done everything we could to try to help you for the last ten months. Now it's time to help yourself. 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.
All right. Plan of action: "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. Perhaps a line under the photo with, quote, New Beginnings in Tallahassee, might be nice. within minutes, Jibbers should either see this or will be getting calls from his friends, acquaintances about this. Mmhh? How happy do you think he'll be? Make arrangements to get the boys caught up with a private tutor/teenage Catholic church member who will come to the house and teach the young men about Jesus. Number three, let Jibbers 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. Number four, summer camp. Don't worry about that one. Number five, register for them -- 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 Jibbers they are enrolled for the fall semester. And you cannot tell anyone this is an act. Somehow it will get back to him. Take control from him. Get to him psychologically. He's going to want you to stop this.
"wendi, you've been through a difficult year,” 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. 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.
"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 to invite -- 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 the performance -- put on the performance of your life within the next few weeks.” This is not a normal amount of pressure for this thing to get done. Right?
One more in here. “Charlie brought up a good point.” I'm not going to read it. You see it. "Dress your kids up in Hitler youth uniforms. Take something from him. You need to take something from him in order to get him to negotiate it back. Take something that he wants. Pretend. Pretend. Pretend."
All right. Now the payoff: "This payoff can put him at the point” -- blah, blah, blah, $4 million range. Point of this: They're willing to offer a million dollars. "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. But litigation continued and even increased as both parties continued to file motions alleging the other was in violation of the settlement agreement -- in violation of the divorce. 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 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 before the -- or by the Florida Bar, alsoa clinical professor of law at Florida State University. "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 form." 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.
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. Talks about how she's helped herself to all of this property, 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 posture as possible because there would be no financial consequence for her doing so. Them's fighting words. It's clear that this was an extremely contentious divorce with high emotions and a lot at stake for both sides.
Listen to part of this e-mail from the "donnaharvey" e-mail address to wendi Adelson dated February 18th, 2014: “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.
Counter-motion for enforcement of MSA on parenting issues and motion for contempt and sanctions. On March 26th, 2014; March 26th, 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. 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. How do you think that went over based on what we know about Donna Adelson?
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 e-mails in State's Exhibit 80 shed some light on how the Adelson family responded and 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, and obviously there's a lot of bad blood.
JUDGE HANKINSON: You've got something going on behind you there, Ms. Cappleman.
MS. CAPPLEMAN: Yeah. Maybe I'm getting excited and pushing buttons.
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? On July 13th, 2014. That's when she told Lacasse about this, just five days before Dan Markel was killed.
But the seed for this conspiracy had already been planted when Charlie had looked into committing the murder back during the summer of 2013. That was the time when the judge ruled against wendi and the kid moving -- 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 e-mails we recovered, how do you think Donna took the news that Jibbers 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? why keep Dan Markel's parents away from the children for any other purpose other than to obliterate the memory of their father?
So it's the State's theory -- see where we are here. Here's wendi's trip from her residence down to the crime scene and then to the liquor store where she purchases Bulleit whiskey, and then goes all the way back up to Mozaik where she engages in a lunch date. when she pulls up to the crime scene -- oh, 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. 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.
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. Do these two defendants fit into this conspiracy? If so, how? This is done out of necessity. It's nota desperation thing. I want y'all to see the whole picture.
That being said, it's natural for you to wonder what's going on with these other people, when and how will they be charged? 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.
MS. CAPPLEMAN: Much has been made regarding my personal feelings about charging the Adelsons. 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, 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.
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. Anyone else is for another day or for another jury. 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, so the evidence that you've heard concerning the Adelsons is necessary.
while we're on the topic of the Adelsons, it's worth pointing out that absent their -- 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. 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 axe to grind. Luckily, he left a day early so he had a great alibi.
what about this thing with the Tv? Charlie Adelson gets wendi Adelson a TV as a divorce present as a cheaper alternative to hiring a hitman. Then the same Tv is wendi Adelson's alibi for the time that her husband is murdered. 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.
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. 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?
what about the evidence that Katherine Magbanua already knew that the crime was done when she got that phone call from Sigfredo Garcia? 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? It's done. And what did Katherine Magbanua say? I know. How did she know? TI cannot answer that question. Possibly -- I mean, somebody had to tell her. Or perhaps she meant it figuratively. Like, I'm waiting by the phone for this thing to get done, and when TI see the phone ringing, it's you, I knew it was done. Don't know the answer.
Here's Katherine Magbanua and wendi Adelson, taken on the beach just outside her parents’ condo on June 15th, 2014. So this is ten 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.
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. How would he know to say that they had to get it done because Mr. Markel was leaving town the next day?
Let's talk a little bit about Mr. Rivera. Mr. Rivera is not my best friend from childhood. 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. 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.
He is a bad dude. 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. 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 a 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? The defense wants to say he was spoon-fed, but then they also want to say it was terrible and inconsistent and full of it. How can it be both ways? Did I do -- I spoon-fed but I dida terrible job of it. 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.
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 TIT just spoon-feed him to tell me the Adelson 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, Charles Adelson. And he's just telling you what you already know. You don't have to rely on Luis Rivera. 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.
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? Not a lawyer telling you what's important and what's not.
So did he seem to have an opportunity? Yeah, he was there. 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? He saw it. The fact wasn't listed in a media report. The fact wasn't known to law enforcement. Couldn't have known it unless he was there.
How could he have known that Dan Markel was scheduled to leave town, a fact that wendi confirms? Because Magbanua told he and Garcia that they had to get it done for that reason. 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.
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. Was it accurate? Yes, it was. Right between the eyes.
what evidence corroborates what Rivera says? Mr. Geiger heard a gunshot. 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. That Prius ultimately leads back to Mr. Rivera and Mr. Garcia. Both of their names -- well, Rivera's name and Garcia's number are both on the rental contract for that Prius.
MS. CAPPLEMAN: Let's review how we got from this image where Mr. Geiger looks out his window to the Prius. All right. So we've got the surveillance video at Premier Gym which shows the Prius stalking the victim. 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. Again, you'll notice the white shirt is in the passenger side, dark shirt is the driver. The tower dump from Premier Gym shows a phone number that was linked to Harvey Adelson, and then 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.
Look at the call frequency. who does Mr. Rivera -- who does Mr. Garcia call frequently? Luis Rivera. 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 phones 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 -- come on.
JUDGE HANKINSON: When you get at a good stopping point, Ms. Cappleman, we probably need to give the jury a break.
MS. CAPPLEMAN: Yes, Sir.
-- that this Prius was assigned to Swartz hybrid rental car place. So Swartz hybrid rental car place basically is the owner of this transponder. They have Priuses that this transponder could potentially be attached to. when we go to Mr. Swartz, Mr. Swartz says, Yes, that transponder was, in fact, affixed to a green Prius. 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. Garcia's number listed under brother.
Shoddrick Nobles also puts both men on both trips. He talks about the two having car trouble on the second trip. well, they had car trouble on both trips, but the second trip is when Mr. Garcia repairs the hose on the Prius. We later learn from Mr. Rivera's proffer how the hole got there. we go back to the Prius and confirm, yes, in fact, a 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.
(Jury exits.)
JUDGE HANKINSON: I did note, as I was reading, a couple mistakes in the instructions. The only one of substance, I think, is in the aggravation of a felony instruction, the second paragraph. I'll be sending my judicial assistant in with corrected instructions, and she's e-mailed those to you so when you get a chance...
we'll take 15 minutes.
(A recess in the proceeding.)
JUDGE HANKINSON: Let's have the jury, please.
(jury enters.)
JUDGE HANKINSON: You may proceed, Ms. Cappleman.
MS. CAPPLEMAN: Thank you, Your Honor.
Let's talk about the phone evidence. I know you guys enjoyed Corbitt one, two, three, four, and five. 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.
On -- I want to talk about the June trip first. So on June 2nd, the first trip, car was rented by Garcia. At that time Ms. Magbanua's phone records are consistent with her leaving her residence in North Bay Village -- oh, this clicker is amazing. All right. New clicker. Clicker-gate is concluded.
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.
Rivera's phone shows us an idea of the route they traveled along on their first trip to Tallahassee on June 5th, 2014. You don't see orange dots on here because we don't have any location information because 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 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 Shoddrick Nobles. Remember him: Believe it?
All right. 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 very -- pinged very near the Trescott Drive residence of Mr. Markel.
So the phone gives us an idea what they were up to, showing that upon arriving in Tallahassee, they're in the area of the Budget Inn. Okay. 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.
Then Rivera returns to Miami. we see his phone traveling along the route back to Miami arriving back in the early morning hours of June 6th, 2014. 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.
The GPS data on the vehicle is consistent with that, and then this is going to be a slide which indicates the -- what does this indicate? Hyundai GPS return. Okay. So on June 6th after Garcia and Rivera return from the first trip to Tallahassee, Katherine Magbanua's phone -- where is it? here -- 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 is returned. Garcia is and Magbanua is.
All right. This slide shows you a summary of all the communications between Magbanua and Garcia during this first June trip. 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 make that -- corroborate the possibility that those statements were, in fact, made.
MS. CAPPLEMAN: All right. 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 14, there's 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 2:00 a.m.
The next morning, July 15th, Mr. Garcia calls Comfort rental car, which is the same place 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. 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.
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. 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.
All right. So the Prius is rented. They don't leave immediately for Tallahassee. 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.
All right. Now, July -- 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 -- what time?
MS. NORRIS: 1:10? No. TI don't know.
MS. CAPPLEMAN: I can't remember.
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.
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. 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. During this trip there were 21 phone events between Garcia and Magbanua, including 12 calls.
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. 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. So that's all the phone communications between Garcia and Magbanua on the July trip.
So I talked about the instructions that Rivera says Ms. Magbanua was giving, such as, quote, Don't do anything stupid. 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 is supposed to know where you are, and if you're posting on Instagram it'll be obvious that you're in Tallahassee.
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 him 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. Twenty-three 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. 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 Rodeway Inn the room rented for them by Mr. Nobles. Both phones are consistent with the Rodeway Inn that night into the morning hours of July 18th.
All right. Friday, July 18th, this is the day that Dan Markel was murdered. 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 -- 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, corroboration. And then the bus shows them leaving Premier and heading towards Dan Markel's residence.
So with the bus videos being both right before and right after the homicide, you can narrow the timeframe of Mr. Markel's death to between 10:44 and 10:54. 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.
MS. CAPPLEMAN: The first phone call that either -- so Mr. Garcia 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 is -- that piece of phone information is Mr. Garcia calling Ms. Magbanua at 12:30 p.m. That call does connect. The conversation does occur. That information corroborates Mr. Rivera's testimony that, We called her and told her it was done. She said she knew, and then we told her we wanted our money. She said we'd have it the next day.
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 so you've got Katie to Garcia, Charlie to Katie. You know, you can read.
All right. So murder is done. They travel back to Miami and they hit this toll plaza eastbound at 5:23 p.m. Then they're seen at the Pembroke Pines ATM where Mr. Rivera does a transaction there. And after the ATM, both phones, Mr. Rivera and Mr. Garcia, are consistent with being at Rivera's residence at about 7:00 p.m. that night, the night of the murder.
All right. Let's talk about this Friday night meet. where is Katherine Magbanua once Garcia and Rivera get back to Miami after the murder? Between 9:46 p.m. that night and 10:20 p.m. that night of the murder, this is kind of the -- the red arrow 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. And then we'll go to Saturday morning. Saturday morning, July 19th, 2014, this is all the call activity for that morning. There's like a flurry of activity for about 40 minutes.
Katherine Magbanua is repeatedly trying to reach Mr. Garcia. She's unsuccessful because he's dumped his phone after the murder. Location of Ms. Magbanua shows that she's traveling south from the area consistent with Charlie Adelson's residence -- of course, it could be consistent with anything north of where she was at that time -- south toward Rivera's residence.
After seven failed attempts to call Garcia, Katherine Magbanua finally reaches out to Anthony Ortiz, because she wasn't able to reach Rivera on his phone. She calls Ortiz. That's her first communication with Ortiz ever. That's at 9:47 a.m. on the day of the money drop, July 19th.
Anthony Ortiz, in turns, calls Garcia himself, gets no answer because Garcia's dumped his phone. That was at 9:49 a.m. Then Ortiz calls and reaches Luis Rivera at 10:02. So now Luis Rivera knows that Katherine Magbanua is looking for Garcia. Rivera knows where to find Garcia because he's at Shrimp's house.
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 time is -- 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?
So between 10:00 and 10:30, Rivera's phone is consistent with going to the home of Garcia's new girlfriend, Shrimp. I guess Garcia was living there at the time as well. 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.
About 10:23 to 10:32 a.m., there are events which -- 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 a slide? Yeah. This is the money drop slide.
MS. CAPPLEMAN: All right. And what kind of money does she bring? 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. we know he staples his money. That's a pretty weird thing, and the money they got paid with was stapled.
why does Katherine Magbanua have to be the connection? Is it -- you know, 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? Y'all 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 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 was 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 voice mail and -- that call was not answered. I don't know if it was a hang-up or a voice mail. 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.
Other than that, the two killers had zero communication. The defense wants to say, well, what about all these other phones we don't know about? Let's focus on what we know about. You know, what we don't know about we don't know. what is the evidence, show us, in the case? They're talking to everybody else on these phones. They're doing drug deals on the phones. Charlie does his steroid deals and all that on the phones, or it's present on the icloud. 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. It just doesn't exist. There's no evidence. What is there evidence of? A link. A link is named Katherine Magbanua. I mean, it's -- it seems obvious.
There is no evidence or proof of records at all of Charlie Adelson and Sigfredo Garcia communicating. The defense showed you that deep sea fishing text and purported that to be evidence that these two were talking. But to the contrary. If you read it in its context, I think you will see that it's evidence to the contrary. They were not talking. Did he call you? No. Oh, yeah, he did. He wants to take me deep sea fishing. 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. All right. Let's start with the Adelsons. What did Mary Hull tell us about the Adelsons' financial picture? 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.
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. Charlie Adelson earns between three and three and a half million dollars annually. And separately, the Adelson Institute earns another 2 million annually. That doesn't even include their investments.
MS. CAPPLEMAN: Here are the checks that Katherine Magbanua got from the Adelson Institute. The red line items indicate that these are consecutively-numbered checks. Here is a photograph of motorcycles that Mr. Garcia and Mr. Rivera bought. Mr. Garcia bought a car, this Monte Carlo, within one week of getting paid to do this murder. well, the defense says this is a pretty crappy car. Okay. I mean, it's not like he got a million bucks. 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. Defense wants to -- strike that.
So he got $40,000. This is Mr. Garcia. He gave a couple thousand out of his cut to Mr. Rivera, so let's say it's down to 38,000. 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 22nd, 2014; a gold Maxima on October 17th, 2014; and the Monte Carlo as well, all within three months of the homicide. Mr. Rivera bought the matching bike and also a Camry within two weeks of the murder. Within two weeks.
So between the two of them, within three months of the murder, we've got five vehicles being purchased. 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. 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.
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. She's got two different banks and she's going around to different ATMs depositing money into multiple accounts. Note on one of the exhibits, which I don't think I have in here -- I don't but it's Exhibit 106. There's a payment to Mr. Zangeneh on there July 21st, 2016, $1,000. Mr. Zangeneh does not represent her. And September 12th, 2016, $2,000.
Ms. Magbanua says she earned this cash working off the books in a night club. She can name no boss, no coworkers, no patrons, and produced no documents whatsoever to support this contention. As evidence, she offers a photograph of herself scantily clad at what appears to be a night club. 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. 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 into evidence for your consideration -- which, first of all, it's not cash. It's a check for tips. It bounced so it cannot go into this consideration of her accounts at all.
Yindra Mascaro told you that Katherine Magbanua was not working in the clubs at the time this murder occurred. Yindra Mascaro is Ms. Magbanua's best friend. One of them is a Godmother to the other one's child. I think Ms. Magbanua is Godmother to her child. To the contrary, Mascaro says she and Magbanua worked together at Hollywood Live in 2014. 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.
So Katherine Magbanua quit between May 4th and June 4th, according to this testimony, 2014. 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 was going to happen if the murder had occurred as originally planned.
Then she goes to work for the Adelsons and collects a paycheck there after the homicide. 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 SOFi Dental Care, the 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. 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. If she made $1,500 a night, she only did it in July of 2014, 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. So to the extent that it was intended to augment her tips, it did not. They, in fact, declined after that timeframe. Her cash deposits declined after that timeframe.
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 Optimar Realty. There's the murder. That's when the murder occurred. That's when the breast augmentation occurred.
All right. we're going to get to that in justa minute. I want to wrap up the financial stuff. The check Katherine Magbanua is using, I talked about how it was not cashed. I talked about how it was bounced so it cannot explain the cash spike. 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 $500. Ms. Magbanua says no, it's more like 1,500. Even if she's making $1,500, 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. Ms. Magbanua worked one to two nights a week. Even if she made three grand, had a $1,500 night twice in July of 2014, that's only $3,000. She's got 13,000 in deposits.
Her being put on the payroll at the Adelson Institute is a sham. There is no evidence of her doing any work on the weekends. She even admits she might have gone up there one time. There is no evidence of her making any calls or doing anything online, and we were listening to her phone. She wasn't able to shed any light on what it is that she does while she was on the witness stand.
She said she's the personal assistant to Charlie Adelson -- or was the personal assistant. 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? 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. But Magbanua is the exception. She's the one that gets put on the payroll. And she's not even dating Mr. Adelson. This isn't like, Hey, put my girlfriend -- she's down on her luck. Put her on the payroll, Mom. 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. 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.
You heard what transpired when the officers walked in there to subpoena her employment file. Erika Johnson had to go call Charlie Adelson for direction on what to tell them. 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 land line. why would that be necessary?
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. 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.
She also got a lot of gifts from Charlie Adelson after the murder. She was put on the Adelson payroll, as we talked about. You saw the list of checks. She netted a total from them of $17,729.73.
She was -- she did pay cash for her breast augmentation, which she says she saved up for. But there's, you know, no corresponding withdrawal. She said 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 $1620.77 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, she acquired the title to that on January 23rd, 2016. All of these things post-murder and all of them post-relationship with Mr. Adelson.
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. 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 accounts. Six days later she deposited $1400 in cash. She has no recollection of ever getting any cash from Mr. Adelson.
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. 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 35,000 -- $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. 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. 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.
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. 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 them, 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. 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. when the undercover hands Donna Adelson an article about her murdered son-in-law, insinuates that she was involved, and then tried 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? Does she report it to law enforcement? Nope. She goes straight to Charlie Adelson who goes straight to Katherine Magbanua who goes straight to Sigfredo Garcia.
This is 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? She calmly folds that piece of paper and puts it in her bag without even looking at it. She goes to pick up her grandsons from school. She returns home and she calls Charlie Adelson. They meet the next day.
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 Charles Adelson and Donna Adelson, the fact about those calls has come in for you to consider, which is that Charlie Adelson -- 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 was 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, one ex-girlfriend, Katherine Magbanua.
Then he goes to meet his mother to get the details, and he tells Ms. Magbanua on that first call, you know, Oh, maybe it's not you. I just -- you know, they said ex-girlfriend, so I'm calling you. I1'11 get back to you if it does involve you, and then he gets back with her because it does involve her.
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, this, because this guy is representing himself as some Latin King guy that knows information about the murder, knows the killer. So is Katherine Magbanua involved in the plot to extort his mother? He can't be sure at this point.
Neither can he be sure that it's not the police. They both know they're under suspicion, 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 is offering to pay for Katherine Magbanua and Sigfredo Garcia to go on a weekend getaway, call F. Call K, which I tried to include -- all right. So 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. Let's see if I can make it play.
(Video recording published in open court. Transcription is not possible due to audio quality.)
MS. CAPPLEMAN: Ms. Magbanua cannot recall any of the contents of that conversation, other than Mr. Adelson was talking about scenarios.
(Audio recording published in open court. This transcription should not be considered a verbatim record due to the quality of the audio.)
(Audio begins:)
AUDIO RECORDING: I'm going to tell you something right now and I'm going to make it very clear -- I'm going to make something very clear because you're talking belligerent bullshit. I'm going to -- I'm going to make something very clear. Okay?
AUDIO RECORDING: -- and I'm drunk. You had spoken to me about anything and now you're going to come at me.
AUDIO RECORDING: Why? Because you don't know how to apologize, because you were wrong. Okay?
AUDIO RECORDING: (Inaudible) last night --
AUDIO RECORDING: The same thing that happened last time. Listen, I have a more pressing matter that I have to attend to. Okay?
AUDIO RECORDING: But what -- I don't feel secure, because you take care of everybody else. Where's my security? When are you going to step up for me? When is that going to happen? Because I feel like everybody else gets the (inaudible), and then, Katie, you go figure it out. You go figure it out. You figure out the kids. You figure out life. You figure out --
AUDIO RECORDING: Katie, Katie, Katie, Katie, you're so -- Katie, you're doing this again. This is the same shit. I've been here. I've never felt happier. We were so happy. We were so -- we were so happy.
AUDIO RECORDING: (Inaudible.)
AUDIO RECORDING: God, Katie. All right. All right. All right. Then fine. Then go. Whatever. Fine. Go. If that's what you need to do to make yourself happy, then I'm not going to hold you back.
AUDIO RECORDING: (Inaudible) everything. After everything we went through, why does it have to go back to -- do you know how bad I feel? It's like, again, I feel like I have --
AUDIO RECORDING: Katie, listen.
AUDIO RECORDING: This always -- no. I swear to God. It's just like -- it's like I need to go somewhere because it's like you're being --
AUDIO RECORDING: Do that. Do that.
AUDIO RECORDING: You're going to tell me, I'm going to make a phone call.
AUDIO RECORDING: I'm going to make that fucking phone call.
(Audio recording pauses.)
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 to 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 it out who it is.
(Audio recording continues:)
AUDIO RECORDING: Do what you want to do. Do it. I'm going to take care of my -- I'm going to take care of this fucking problem. I'm going to take care of this fucking problem.
AUDIO RECORDING: (Inaudible) you're not even listening.
AUDIO RECORDING: Just to let you know --
AUDIO RECORDING: (Inaudible.)
AUDIO RECORDING: Stop -- shut up, man. Just stop talking on the phone, man. Bye.
(Audio recording concludes.)
MS. CAPPLEMAN: Here's a slide of text S which was introduced into evidence on April 26th, 2016. Garcia says to Magbanua: "Whatever is going on with you and your homey," 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. 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? Because my kids were around or my co-workers were around. Well, you're giving a phone number. Why does that need to be coded? She's talking about Ethan's clothes cost $65.70. What's that about? That's the last four digits of the undercover number. 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 65 -- $67.50 or $65.70. He goes, Got it.
I asked Katherine Magbanua why would it be necessary? Did she give an explanation for that that was reasonable to y'all? And the next several calls, the three of them, Charlie Adelson, Katherine Magbanua, and Sigfredo Garcia proceed to have, you know, this ridiculous, what's the number, what's the number, back- and-forth conversation trying to get this number straight and really trying -- all trying to act like they're calling it when they're not calling it.
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 jt was potty humor, but I think it was a reference to what the real problem was that he did, in fact, want flushed. Then he says, why don't you guys go on vacation, leave the kids at home, have a cocktail and call it a day. He offers to pay for that vacation. why is Charlie Adelson offering to pay for her and her baby daddy to go on vacation?
Charlie is trying to get Katherine Magbanua to call that number. Magbanua is trying to get Garcia to call it. Garcia is lying to Magbanua about having called it. Magbanua is 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 and that -- you know, alluding that it's the police, not any real threat.
And then there's State's DD, Katherine Magbanua to Charlie Adelson.
(Audio recording published in open court. This transcription should not be considered a verbatim record due to the quality of the audio.)
(Audio begins:)
AUDIO RECORDING: (Inaudible.)
AUDIO RECORDING: Okay.
AUDIO RECORDING: (Inaudible) Susan's phone number on there, and actually the person left a message with Erika.
(Audio recording paused.)
JUDGE HANKINSON: How much time do you want to reserve for your rebuttal, Ms. Cappleman?
MS. CAPPLEMAN: I'm told I have 30 minutes remaining, Judge. So whatever is left is left.
JUDGE HANKINSON: What's that?
MS. CAPPLEMAN: I'm told I have about 30 minutes remaining so I'm going to keep going, finish what I have planned.
I'm calling a time out for this.
(A pause in the proceeding.)
(Audio recording published in open court. This transcription should not be considered a verbatim record due to the quality of the audio.)
(Audio begins:)
AUDIO RECORDING: What happened?
AUDIO RECORDING: Somebody called my dad's office looking for --
AUDIO RECORDING: Okay.
AUDIO RECORDING: -- the name that they dropped off some paperwork (inaudible.) There was a phone number on there. And actually, the person left a message with Erika Cinaudible) saying that I left some paperwork with Dr. Adelson last week and I left a number on there, and he needs to call me at that number.
AUDIO RECORDING: (Unintelligible.)
AUDIO RECORDING: 305-6570 --
AUDIO RECORDING: Exactly. I know (unintelligible) nonworking number.
AUDIO RECORDING: It's someone who wants to be called back, let's put it that way. Do you still have her number?
AUDIO RECORDING: Yeah. well, obviously Cinaudible.)
AUDIO RECORDING: Hello?
AUDIO RECORDING: That is not a nonworking number. That's an e-mail number.
AUDIO RECORDING: (Inaudible) I'm just asking you to find out who the fuck it is.
AUDIO RECORDING: Get that number that's off of your -- off of the -- off of Cunintelligible) caller ID --
AUDIO RECORDING: At the office?
AUDIO RECORDING: Yeah. Obviously.
(Unintelligible.)
AUDIO RECORDING: Well, they're not coming out on foot. They're not writing letters and they're not calling the office because they have nothing better to do.
AUDIO RECORDING: Well, I don't know what to tell you Cunintelligible.)
AUDIO RECORDING: Katie, it's not Cunintelligible.)
AUDIO RECORDING: (Unintelligible) it's fucking bullshit. It's fucking somebody trying to fucking Cunintelligible) some bullshit like it -- it's getting aggravating.
AUDIO RECORDING: Yeah, it is. AIl I'm saying is find out who the fuck it is and tell them to stop playing.
AUDIO RECORDING: You're an idiot. (Unintelligible) get the fucking number.
(Simultaneous speakers.)
AUDIO RECORDING: (Unintelligible) my fucking number. If Erika wants to call them back and it goes to the right number, okay, I have the fucking -- Cunintelligible) taken care of. Okay. It's bullshit.
AUDIO RECORDING: So what I'm saying is find out who the fuck it is.
AUDIO RECORDING: That's not how this fucking works. CUnintelligible) different offices. Call the motherfucking number. See if the fucking number works. Bottom line. (Unintelligible) the number does not work.
AUDIO RECORDING: Katie, call them. Find out who the fuck it is now. Trust me on this. Find out who the fuck it is.
AUDIO RECORDING: Get the number. Leave it to me. And get the number --
AUDIO RECORDING: Call my mom and have my mom call the office --
AUDIO RECORDING: Get the fucking number.
(Unintelligible) not a working number. (CUnintelligible)
AUDIO RECORDING: somebody is just trying to aggravate somebody.
(Audio recording concluded.)
MS. CAPPLEMAN: All right. So this is call 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 call the undercover, and you heard the call GG that you have with the undercover.
what does Charlie Adelson say when the undercover explains that since his family's problem has been taken care of up north, Charlie Adelson's been taking care of Katie and Tuto but has done nothing for Tato? Does he say, What family 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? No. He says, All right. Let me look into things, quote. Then in HH, Charlie Adelson is reporting back to Magbanua what his conversation was with the undercover in call GG. Mr. Adelson says the undercover says Tuto and Tato. He doesn't -- but he says he doesn't know them. Magbanua knows exactly who Tuto and Tato are, but she doesn't enlighten Mr. Adelson as to who these folks are.
On JJ, Ms. Magbanua reports the latest bump was the call to the Adelson Institute to Mr. Garcia and says, quote, It's getting too detailed. It's somebody that knows for sure. This call ends with more discussion about what the number is. Garcia wants Magbanua to text it to him and she says, No, I don't want to. why not? If you're just helping out a friend investigate something you had nothing to do with, why talk in code? why the fear of texting the number?
Call PP, Ms. Magbanua is bragging about the really nasty voice mail that she left on the undercover's voice message machine when she nor Garcia have left any such voice mail. She's playing both sides: Garcia against Charlie, and back and forth, telling them both what they want to hear. In the same call PP, she's discussing in code the different scenarios that the bump could be. 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. what?
Quote, That's what I know for a fact. It's not from the inside. 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. That's the wire.
I want to talk to you -- I know I'm running out of time -- but briefly about the law. The crime charged is a first-degree murder because it was premeditated. I don't even really want to talk to you about lesser-included offenses and waste my valuable time and 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. You certainly, certainly have lots of evidence in this case.
This murder began with a failed relocation effort 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. That planning went into killing -- was extensive, spanning a six-week period, including two thousand-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 families. And the investigation would have completely stalled if either of those leads had not generated anything, but all those little bread crumbs 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.
MS. CAPPLEMAN: 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. Markel, and then he made both trips and participated in the stalking of the victim, the casing the residence.
In reference to Katherine Magbanua, I do expect that the principal instruction will be crucial to your considerations for her Count I murder charge. There are two ways to prove Ms. Magbanua's guilt for first-degree murder under principal theory: 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. 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 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 for his -- the hitman and ultimately 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.
Both of these defendants are guilty of everything they're charged with. You have been so very patient throughout this process, and when you get back to the deliberation, I -- to the deliberation room, I urge you to take your common sense with you. And that's in the jury instructions as well. 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 lawyers should not influence your verdict. If you think that, you know, I'm crooked and I've spoon-fed and all that, that's something you can consider as far as how it affected the evidence in this case. But your personal feelings about me, whether I'm as crooked as they say, should not affect your verdict in the case.
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 when you have one restroom, but we'll be in recess.
(Jury exits.)
(A recess in the proceeding.)
JUDGE HANKINSON: Let's have the jury, please.
(jury enters.)
JUDGE HANKINSON: Mr. Zangeneh, you may proceed.
MR. ZANGENEH: Thank you, Judge.
Your Honor, Ms. Kawass, Mr. DeCoste, Ms. Cappleman, Ms. Norris, ladies and gentlemen of the jury, for the last three weeks, the government has been selling you their story, okay, and we're going to call this story the Sigfredo Garcia house. Okay? Not to be confused with the Donna Adelson house, Charlie Adelson house, the Harvey Adelson house. It's the Sigfredo Garcia house, and they want you to buy what they've been selling.
My job is to be inspector of this house. My job is to point out things that they don't want you to see. we're going to talk about the problems with this house. we're going to talk about the problems with the foundation of the Sigfredo Garcia house. we're going to talk about problems with the wiring in this house. we're going to talk about problems with the plumbing and with the roof of this house.
Now, the foundation of the government's case unequivocally, without a shadow of a doubt, is Luis Rivera. How do I know this? Because the government said it in their own closing that he is the linchpin of their case. He is -- and the definition of "linchpin" is one that serves to hold together parts or elements that exist or function as a unit. He's the only person that tells you what he believes happened that day, the only one.
So who is Luis Rivera? Let's talk about who he is. Luis Rivera -- and, you know, the government tries to downplay this but it's important. It's important to know who you're listening to. It's important to know who's on that stand and who is he? He's the head of a criminal organization, one that he got indicted for, for racketeering. He's been a crown of the Latin Kings, the first crown, for almost 15 years.
why does that matter? Because he is a person that has criminal connections in his own criminal organization. He told you that. He got up there and he goes, I have 100 people just in the north Miami tribe of the Latin Kings. One hundred people. And that's a small tribe in a nationwide organization that is peppered throughout the State of Florida.
why does that matter? well, if you recall during his -- 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 Latin Kings to do three violent criminal acts, three in 30 days.
Now, how do we know Sigfredo Garcia wasn't someone that he elicited? 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. He was in federal prison.
was there any evidence to suggest that Sigfredo Garcia was in federal prison? Quite the contrary. Sigfredo Garcia was working at a finance place when federal agents went to approach him. So what does this mean? It's not on that indictment. He's not part of Luis Rivera's criminal network. 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.
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. This is not a charitable organization. This is a violent gang, 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? He goes and he robs people. And who does he rob? 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 $20,000.
why is this important? Because when you go rob somebody, you don't get paid up front for the robbery. Right? You get the spoils of the robbery. That's what you get. Luis Rivera had indicated that he makes ten to $20,000 after every robbery. Luis Rivera told you that he is no longer associated with the Latin Kings. Right? Then he told you that he has fear that there's going to be retribution against him by the Latin Kings. Right? And this fear was so deep-rooted that he got up there and he says, Man, I'm in protective custody. They're going to kill me.
MR. ZANGENEH: well, if you recall, we introduced a letter to be sent to Ms. Cappleman, 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, because they put him in isolation to protect him, what does he tell them? He wants out. He wants out of isolation.
what's really important is I want you to read the last line. He goes, "It is ridiculous that I am in confinement only because" -- what's the last two words -- the last three words? "I helped you." 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. They want you to think that he came forward and told you 100 percent what took place.
Now, he was arrested in May. He got appointed an attorney. 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. His local lawyers went to see him, and they went over the evidence, the majority of the evidence that you see. And this happened before he met with the government.
So if the government wants you to think that she didn't spoon-feed him anything, well, she provided the evidence to his lawyer who went over it: And, Mr. Rivera, you've got a big problem here. They have you, just you, on your cell phone going up there in June. And they have you renting a room. They have you renting a Prius. 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 a lifetime, because what did he have to do? I initially came and I told you it was seven years. It's less. He has to do 19 years, and he's doing 12 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, testified about ten times. Recorded statements were made by Mr. Rivera. The government recorded it. Do we have any of those in evidence? The October 4th statement, are you guys going to be able to go back --
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. That's not an appropriate argument to make.
As I've explained to you, jury, if there's something inconsistent in those statements, that's fair game and they can 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 in evidence.
You may proceed.
MR. ZANGENEH: He made ten statements, ten of them. Ten statements. My client was interviewed for 45 -- well, 2 minutes. You heard that statement. They played that audio for you. Right? You remember that. when they went to interview my client, you heard that one. Right? They played it for you. They brought it out. They marked it as an exhibit, they pushed play, and lo and behold, exactly what was said.
Luis Rivera's testimony is what you take it to be. There's also jury instructions that give you guidance on how to determine how to judge a witness. There's an enumerated list that you're going to get to go back in the room with you. It says “weighing the Evidence.” 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 memory? was he being honest and straightforward in answering our questions? Did he have an interest in how this case ended? Did his testimony agree with the other testimony and evidence in the case? Has the witness been offered or received any money, preferred treatment, or benefit in order to get their testimony?
And there are a few others, which include, is the witness a convicted felon? Five felony convictions. And did the witness, at some other time, make a statement that's inconsistent with the testimony that he provided in court? well, you heard what he provided in court, and you know there's about nine other statements.
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. And he goes, Okay, sure, let's go. And the track on that purported date -- sorry, this is the wrong one. Here we go -- starts June 4th. Their cell tower records get them at 1:30 in the morning in Miami. And then on his trip, 3:13 a.m. Okay?
So somewhere in between he starts heading north. Now, what did he tell you? He said, Yeah, listen, Sigfredo came to me and said, look, I've got -- we've got a robbery to do. Let's go. 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. Look at his phone records. Look at what it says. Do you think there's a gun store open at two 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, that's -- we deem that to be 100 percent completely not believable. Okay? This is a person that has extreme knowledge of how crimes work. He's part of a national-wide criminal syndicate. what does he have to do? Hey, bro, listen, I'm coming up to Tally. Get mea gun. Get me a tool. That's what they call it, a tool. Get me a tool. 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. That's a major crime.
So he wants you to swallow that, okay, 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. Okay. So what did you guys do? well, we did coke and we drank the whole way up.
Now, listen, at 3:13 a.m. -- I'd say it's about a seven-hour drive, taking breaks, from Miami to Tallahassee, give or take. How long is this drive? Let's say -- let's just say he left at 3:00 o'clock and he gets there at 12:30. It'sa nine-and-a-half-hour drive. Sergeant Downing pulled them over. Right? we know that for sure. There's a record of it. That record shows Luis Rivera was the driver of the rental car. And Sergeant Downing, when we asked him, was there anybody else, he's like, No. That's what I check when no one else is in there. Nobody else was in the car. Right? And what else did he say? He goes, well, you know, he had been a trooper and doing other law enforcement for about eight years before this. If what Luis Rivera was telling you was true, then Sigfredo Garcia must have consumed three to four grams of cocaine during this ride up. Now, I'm sure he doesn't have a glass table to do cocaine off of, so what does that mean? Probably took out his key, did key bumps. There would be coke all over him. This would be a disastrous probable cause to search the car which he purported had guns in it.
MR. ZANGENEH: Does that make sense? Does the evidence suggest that? Trooper Downing, let me tell you, 9:00 o'clock in the morning, a guy that's been on cocaine all night, someone that's been trained as a police officer for ten years, guess what he's going to do? Get out of the car. Right? Probably coke all over his face. You know why he didn't say that? A, he wasn't in the car, and B, it didn't happen. Are there -- are there records to show where Sigfredo Garcia was during this time? Magically, they're not. 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, well, what about his bank records? well, we had to search archives. We're not going to do that. God forbid. God forbid we make one other call and get information because it could hurt us. Luis Rivera, their linchpin, has married them to a story. This is the foundation of their case.
So they're going to say, well, it’s not just him. Shoddrick Nobles comes forward. Now, Shoddrick Nobles came in January of 2016, right, January of 2016, a year and a half later. They called him in because they think that he's part of a murder. what do they tell him? well, tell us what happened. well, do we know exactly what he said? They did say it was videotaped.
What he testified to was that my client, after a whole day of consuming toxic or maybe even a fatal amount of cocaine, wanted more cocaine, and he flags him down without knowing him in Tallahassee when he's allegedly next to a gang member that has connections all over the State. Does that make sense? You know, in the world -- 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, does it make sense?
You know what also doesn't make sense? Shoddrick Nobles, by chance, magically, on the next trip, sees him on the road. Right? I mean, that -- your antenna must have jumped up, gone, wait a minute. Is that a coincidence? That's such a crazy coincidence. Shoddrick Nobles told the cops, Yeah, you know, I bought hima little coke. Did he get charged for that? No.
Now, our position is Shoddrick Nobles probably didn't get him a little coke. 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. You know when you go for a day trip, that's a drug deal, and that's what this was for Luis Rivera, a drug deal. Shoddrick Nobles admitted it. Now, he changed the amounts and he changed the intention of it, but doesn't that make more sense that he's going up there for a drug deal? Right?
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 8:00 o'clock in the morning after about a five-hour -- being on the road for at least five hours, his alleged best friend goes, Oh, you know what, just to let you know, it's not a robbery. we're going to go kill somebody. Okay. The head of an organized crime unit, okay -- I'm sorry, a crime gang, what is he going to say? what's the first thing that he's going to say? where's the money? Do you think he cares about who they're killing? He's going to say, where's the money? How much do we have now? I ain't going to kill somebody for free. Right? Does he say that? Does he ask, where's the money?
I mean, we've all seen movies. Hitmen take half the money up front, but no money is given. Or more importantly, who's paying us? who's paying us? Because if I'm going to go kill somebody and 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? Because candidly, don't you think that's the first -- these are the conversations that are going to be had on this monstrous trip, at least even from 8:00 a.m. to 12:30. Right? Aren't they going to discuss, where are we getting the money? who's the person that knows about this? who's paying us? Did he mention that at all? 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? Right? 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? we'll get back to some more of this later, but this foundation of their case, their own linchpin, that's weak. 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. June 4th. They stay in Tallahassee a night, June 5th. And then they head back down June 6th. Perfect.
Luis Rivera claims that there's no records of where he stayed because they bribed some homeless person, which they clearly didn't do on July 17th when he rented a room under his name, and which clearly they didn't do or Shoddrick Nobles didn't do on July 18th when he rented a room under his name. There's holes and questions on this trip that have to be screaming, I don't know if I can take Rivera for anything that he says.
And let me culminate Rivera by saying one thing. His purported best friend, he picked him out in a second. Right? Oh, yeah, that's the guy that did it. we asked him a question about the Latin Kings: Oh, man, why you got to bring them into this? Do you think he's protecting somebody? Maybe one of his Latin King brothers?
Government said they cross-referenced Rivera's phone records with other Latin Kings. You don't think he called another Latin King from June to July? In October itself, there's three crimes that are caught on that wire that he confessed to that he admitted to you. But that does not form the theory of the government's case. So control alt delete. Don't think about it. Don't think about that, guys. Don't think about it. Because that could create questions they don't have answers to.
Now, the government wants you to believe someone that's inherently unreliable and that's Luis Rivera. And they said, yeah, he's a bad guy but that's your bad guy. That's their bad guy. I know a bad guy. I got pulled over -- I got cut off today going down 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 is the shooter. Do you think he would have gotten the deal that he got if he admitted to being the shooter? what's a shorter distance when you pull up behind somebody in their driveway, the driver or the passenger when someone's parked in their driveway? The quickest person to get there is who? Someone that just walks right out, gangster style, bang, bang; or someone that has to walk around the car, all the way around?
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. That's his indictment.
Okay. So let's get to a little bit more common sense. Let's get to the numbers. Okay? I'm going to give you $35,000 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 going to go ahead and do this -- do this murder for 35 grand. Right? Because I'm going to be the shooter. And then I don't know if it's a “coming to Jesus" moment or a lie, he says, well, I guess I didn't feel like doing it because there's kids involved. You don't think the victims of his robberies have kids? You think he cares about kids? 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 reengage a month later, that's kind of shaky. That's kind of unreliable.
MR. ZANGENEH: And then here comes the best part: After refusing, allegedly, to do the murder, he claims that on the way up on June 18th -- or during the trip, I'm sorry, of 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. That's a real expensive Uber ride.
You've got to think if my client hired him, why would my client even go up there? Reasonable: Hey, listen, I want you to go take care of this thing. Here's money. Go. why would you tag along? This is not a two-man job. It's a one-man job. You don't see movies where you have two hitmen go do something. 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.
Now, there's evidence that Luis Rivera admitted to. He's a drug dealer. There's evidence that Charlie Adelson does drugs. Government is 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. Luis Rivera sells drugs. I don't know if it's outside the realm of possibility if one day while he was visiting Katie Magbanua, he goes, Hey, can you get me some coke or some weed? Rivera gets called. Rivera comes by and a deal is struck.
That foundation is weak. It's beyond weak. It needs help. So let's go to -- let's go to the wiring, the electricity, the spark, or the motive in this case. The government wants you to believe that my client agreed with Ms. Magbanua to go commit a murder. Okay. Let's break this down.
Okay. 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 Charlie Adelson. Right? TI mean, not only has there been testimony about it, there are text messages. There's 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? That infers he wants to kill me. He wants to take me out in the middle of the ocean and knock you out, have the fishes take care of you.
July 25th, six weeks before this purported June trip that my client went on that there's no evidence of, so we have July 25th -- now, remember, they broke up in 2013. She goes out with him New Year's Eve two-thousand- -- going into 2014. Okay? we know that Charlie Adelson knows who my client is, because there's a text message in late April, the one I just talked about. So what does that mean? He knows about my client.
Luis Rivera, what did he say? I'm talking real fast. I'm sorry. what did Luis Rivera say? There was a time in the summer before the trip that Sigfredo drove up to a restaurant where Katie and Charlie Adelson were, and he wanted to run him over. So wants to kill him. 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, angrily pulled his car behind Charlie Adelson and confronted Charlie Adelson. So definitely no April 25th. Definitely no July 1st. And there's Cellebrite text messages between Charlie Adelson and Katherine Magbanua on July 2nd highlighting the July 1st incident.
Okay. So hates his guts in April. Hates his guts in July. Right? That's the evidence. It's uncontroverted. Even Ms. Magbanua's good friend, the young lady that's in the picture with wendi Adelson -- I forgot her name -- but even her, when I asked her how angry was he about this, she gave a scale of 10, 11, and then 12 when I asked. Okay? Hates his guts.
This reverts back to my initial question about Luis Rivera if asked, hey, you want to go do a job. If Katherine Magbanua, as she's dating a man that drives a Ferrari and flaunts his wealth and his slicked-back hair for everyone to see -- if you Google him, you see his face, you see his cars. If Katherine Magbanua came and said, listen, I've got a job for you. It's 100 grand, don't you think his first action is going to be, From who? who's paying me? who's doing this?
MR. ZANGENEH: You heard Sigfredo's own temperament and his own words when the FBI went to talk to him: Pretty calm, collected, thought-out person. where's this money coming from? They want you to believe that Katie either withheld this kind of information, the kind of information 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? No questions asked, yeah, sure, no problem. Can you pick up diapers? Yeah, sure, no problem. Can I borrow 100 bucks? Yeah, sure, no problem. You want to make 100 grand for killing someone you don't know? Huh?
They don't want you to think about these pieces, because what do they do? They cut Sigfredo out of the equation, because we know for sure how he feels about Charlie Adelson. we know how the government feels about Charlie Adelson, and wendi Adelson, and Donna Adelson. Spent the first 21 minutes of their opening statement talking about the Adelsons.
Now, if Luis Rivera got the deal of a lifetime and after a year or six months they arrested Charlie and he admitted it was just me and Luis, yikes. Right? what a pill that would be to swallow. But we don't know because the only people here, the only people that have been arrested, the only people in front of you: My client and Ms. Magbanua. They're painting a picture with missing pieces. I'm trying to open your eyes for you guys to discuss some of these missing pieces. That's all. That's all I can do. 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 going to give you 100 grand. And then here's the million-dollar question again. what money am I getting up front? How do I know I'm getting paid? Hold on, the guy -- pardon my language. The guy that's banging you is going to give me 100 grand? How do I know? what kind of deposit am I going to hold up front? There's no testimony to any of this. It was -- I guess it was COD, cash on death. That doesn't exist.
The government made a big deal about this bump. we've all heard about it, not the bumps that Luis Rivera was claiming my client took in the 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 do they -- you know, they could get ten wires. They could apply and get wires for anyone that they believe was involved in this case. They believed Charlie Adelson was involved; they got a wire intercept. They believed Katherine Magbanua was involved; they got a wire intercept. They believed Sigfredo Garcia was involved, no wire intercept.
Now, let me tell you why you should be thinking about this: Because even according to the government, Luis Rivera, the person who's family's allegedly extorting him, is closest to who? Sigfredo Garcia. Right? wouldn't you want to hear what he did or didn't do as a result, or who he called or didn't call? They didn't even get an application -- they didn't even get a wire intercept for Sigfredo Garcia. They didn't want to listen to his phone. They wanted to listen to hers and wherever Charlie Adelson is, probably at home watching live in the comfort of his home.
They played a tape, a 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 probably had been out drinking, because it's 8:00 o'clock in the morning and his speech is a little slurred. And what's the first thing he says? They didn't play it in the clip. He goes, I'm not going to make this call. And then she gets on him and he says, I'll make it. But he never does. 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. His name is allegedly on this piece of paper, which we've never seen, but they say his name is on it. And if he was a real gangster the way that they're portraying him, a real murderer, and someone is extorting him, I would assume he'd make a lot of calls. I would assume he would have made a lot of calls to a lot of Latin Kings. Yet, here we are with zero calls to listen to.
MR. ZANGENEH: Now let's talk about the plumbing, what stinks. Okay? Ms. Cappleman was kind enough to indicate to you guys during her closing that I did receive a check from Ms. Magbanua, and she says, well, I don't represent Ms. Magbanua. Guess who I represent? Her husband. 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, but look what they're doing: Attempting to make me appear to be improper. They're trying to shine a turd, pardon my language, in Luis Rivera, and then they're trying to discredit me.
Now, you've got to think to yourself, why would they do this? well, I'll tell you, there's an innocent man that was murdered. A father of two, law professor, was killed in his driveway in cold blood. And at no point do I want you guys with this analogy or anything I say to minimize what happened to Dan Markel. That happened. And Luis Rivera has admitted liability in this case.
Now, let's talk about what stinks. Let's talk about his plea deal. Six and a half years is what he will have to serve in Florida state prison. Six and a half years because he said that my client did a murder. And like I said before, he's the only one that says it. 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.
well, what smells about the government's testimony with regards to that? Remember Inspector Yao? He's really tall. He was the ballistic expert, the gun guy. So before when he had the one point of entry at 49 inches, he said someone between 5 feet and 6 feet tall could do the shooting. Two weeks before trial, came up with a new theory. Came up with a bunch of things that he was assuming to do what? Increase the height of the shooter.
What? 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 -- he even admitted it. And what did the government say in their closing? well, it was a tall guy. That's not what the evidence shows. The evidence shows it was someone, with the one point of entry at 49 inches, it's 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.
Now, there are factors that a jury has to take into consideration when making a determination as to someone's involvement in a crime. I want to highlight a few things. The government says Sigfredo Garcia swapped cars. They say it like it's a fact. It's not. 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. The person from the rental car didn't remember there being a trade; just remembered a second transaction.
why is this important? well, the government is like, well, he rented a car. 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. why is he renting cars? He can't afford a new one. He bought a -- bought that horrific-looking 1984 -- I'm sorry, I'm not a fan of the color -- Monte Carlo for a few hundred bucks, and the 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 3,000 -- he said 2,800 and 3,800. The government had every opportunity to investigate the actual price. We have documentation on titles. They wanted you to believe Luis Rivera's number because it makes it seem like he spent more money.
Let's go to the Prius rental. All right. Luis Rivera's testimony: Sigfredo 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 Sigfredo Garcia -- that Luis Rivera rented the car. We also know that Luis Rivera had the gun. whether he got it down here froma 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. And he admits it was only his gun, that he had one gun. One gun. One gun was taken on the murder date on July 18th for the trip. One gun.
MR. ZANGENEH: we have a hotel rental by Luis Rivera. 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; it's important. And remember Luis's testimony. He said Sigfredo had this flip-top, a flip phone, a burner phone, okay, during that trip. There's an incoming text message and an incoming unanswered call at -- between 9:30 and 9:50 in the morning. we have the Prius being out of the line of view at Premier for six minutes. The government wants you to believe that Luis Rivera and Sigfredo Garcia are in the car together because there's a photograph, a screen shot or a still shot of the Prius driving with a passenger that appears to be wearing a white T-shirt. All right.
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. Wearing a white T-shirt in the summer time is like being a Noles fan at your stadium. It's not uncommon. It's not like it was a checkered shirt or there was indications on it. If you look at the picture, it's a short-sleeve shirt. If you look at the picture on the -- on the camera at the bank, it's a long-sleeve shirt. There's no direct evidence of my client at the murder scene other than Luis Rivera, and I believe that we've made our position on him very clear.
Can I just get a minute, Judge?
JUDGE HANKINSON: Certainly.
(A pause in the proceeding.)
MR. ZANGENEH: Okay. Going to get back to Shoddrick Nobles. I forgot about him. He -- this young man told you on the stand that he lives in his car. Okay? 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. 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.
Now, here's an important question. Did they prosecute him for admitting to that drug deal? No. There is a jury instruction -- where is my jury instructions? Right here. No, it isn't. Right here.
There is a jury instruction that talks about how -- let's do this. Now, this is still -- this is still under weighing the evidence. Okay? And you guys have a copy of this. You'll be able to take them back to the jury room.
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 -- right there. I'm going to shift just back to Shoddrick Nobles. He went and told cops he was involved in a drug deal and he wasn't arrested. He assisted the prosecution while he was on probation. No probation violation. No new law violation. None. He got a pass because his testimony fits their story. And the jury instructions specifically tell 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. Didn't he tell you -- didn't he tell us that there was a woman in the car with them? Right? He said there was a young lady in the car with hin, someone that allegedly was at both trips, the June and the July trip, someone that would have potentially corroborated his testimony.
There are issues upon issues that I ask you guys to consider and things that I want you to look at, and go and talk about and think about, because as jurors you bring your real-life experience and your knowledge and your common sense. Okay? And I know it's a lot and I know there's a lot of pressure. There is probably no bigger duty for a juror to have to serve on a death penalty case. I get it. It's a lot.
So what we're asking you is to listen to what I said and consider and talk about it amongst each other and ask yourselves, do I feel comfortable convicting Sigfredo Garcia of the 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? Is it there?
Beyond a reasonable doubt. To find guilt beyond a reasonable doubt, it's 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 go, 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 on. we ask you guys to listen to me because this matters. Okay? we understand it's a high-profile case. we understand that the media has been here and 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 a substantial -- there's substantially more evidence against the Adelsons than there is against Sigfredo Garcia. Substantially more motivation, documentation, ability. More, much more. Yet, here we are and here is your duty and your task.
when you review the jury instructions, take into consideration the discussions that we've had. Look at things independently. Okay? Be skeptical. Be talkative. Have discussions. Don't jump because the government says jump. Question things. That's what you're supposed to do. That's what you do in real life. Kind of like when someone says, hey, do you want to kill someone for a hundred grand, where's this money coming from?
MR. ZANGENEH: Like I said, ask the right questions. Do the right thing. And I'1l1 tell you, at the end of the day, come back with, I'm not interested in buying this house. Come back with the right verdict. Thank you guys for your attention.
JUDGE HANKINSON: All right. we're going to break for lunch. Let's try to -- I want to kind of try to keep this moving. Let's try to be back at 1:30. That'll give us a little less than an hour, I think. So let's be back and ready to go at 1:30.
Either side need anything?
MS. CAPPLEMAN: No, sir.
JUDGE HANKINSON: I guess we need to discuss jury instructions just a second.
(Jury exits.)
JUDGE HANKINSON: I gave you the new version and I e-mailed 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. I think it would only have application with Defendant Garcia, but that second paragraph was kind of mixed up. It did not track the standard instructions so I made that change.
Any objection to that, Mr. Zangeneh?
MR. ZANGENEH: I'm sorry, Judge.
No objection, Your Honor, to the changes that were made.
JUDGE HANKINSON: A copy was given to you?
MR. ZANGENEH: Yes, Judge. I actually used it in my closings. Thank you.
JUDGE HANKINSON: All right. The other changes were more technical than anything. There were some things where it should have been plural where it was singular or vice versa. Was there something you wanted to be heard on, Ms. Kawass?
MS. KAWASS: No, Your Honor.
JUDGE HANKINSON: You looked over the minor changes I made?
MS. KAWASS: TI mean, I've looked over the jury instructions that were read this morning, but if the only change that was made was either technicalities, pluralities --
JUDGE HANKINSON: Look over those. If anybody has objection, let me know. I think you'll find they were just -- there was, I guess, only 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 of that is -- only applies to Mr. Garcia, so that was -- I think that was one of three changes. There were technical changes I made.
All right. Have a good lunch. 1:30.
(A recess in the proceeding.)
JUDGE HANKINSON: Let's have the jury.
(Jury enters.)
JUDGE HANKINSON: You may proceed, Mr. DeCoste.
MR. DECOSTE: Thank you, Your Honor.
The less you know, the better. That's what Sigfredo Garcia said to Katherine Magbanua in 2016 over the wiretaps. It's also what this government wants from you, 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.
During voir dire we talked about Prince Charles, and we talked about perception versus reality. Everyone here remembers the photo that we presented of Prince Charles and it gave a very limited view. That's what the government has done here. 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, we've given you the full picture, not them. Ms. Cappleman can get up here and say, we gave you the information, we didn't do the bits-and-pieces things. They did. we had to, on cross-examination, over and over again bring to you evidence that put their evidence in the proper light.
Let me give you a roadmap of what I'm going to talk about. The first thing -- 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 by the government, the outright dismissal, of the problems and the conflicts in Luis Rivera's testimony. The third thing, how the government is ignoring evidence of Katherine Magbanua's innocence.
Now, before we get deeper into it, the government -- and 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. A majority of the evidence in this case, a vast majority of it, proves that a crime was committed. It's all over there on that table. we don't disagree with any of that evidence.
we absolutely agree. 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. For his family, no parent should have -- 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. Crimes impact everyone, especially this case. Those who are responsible -- and again, they spent hours, hours, days talking about the Adelsons. Those responsible must be brought to justice, the Adelsons.
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 but that's what happened. They came to a determination on their theory -- they came to a determination on their theory. Then they started to look at Katherine Magbanua.
But when they looked at her, they didn't look at her to objectively investigate her. 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, the Adelson family. Some day there will likely be a jury in this courthouse determining the fate of one or all of the Adelsons, but you're not that jury.
You're here -- and again, these are separate cases. It's State of Florida v. Sigfredo Garcia, State of Florida v. Katherine Magbanua. we talked about it in jury selection. These are not together. It's nota package deal. You're here to determine the guilt individually of Katherine Magbanua. And again, she's innocent.
You know, if the government wants to charge the Adelsons, charge them. It appears that they have more evidence against them than the defendants in this courtroom. You know, years ago, many, many years ago, in our civilization, in times of strife, drought, famine, we'd be willing to sacrifice the innocent for the betterment of all. But we all know we've advanced as a society. 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: Prove that a crime was committed. There was a crime. He was murdered. we absolutely do not disagree with that. But with respect to Ms. Magbanua, they have to prove that she was involved. All of that has to do with a crime. This stack right here, which includes financials, which includes CDs, wiretaps, this is the case against her. This right here. This is the evidence against her.
Our first topic: How the investigation into Katherine Magbanua was not objective. Instead, it was to build a case because of what their target is. Let me give you some examples. We saw it in this trial from some of the witnesses, and we saw the early stages of objectivity, the middle stages, in the testimony.
Investigator Jason Newlin took the stand. 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. 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. They cataloged it. Turned it in. They checked it back out. They brought it to FDLE, and you heard from the FDLE analyst, Danibeth Richey, how she went through a very extensive process of evaluating that gun, all the paperwork that she put together, all the reviews 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. That's what objectively reviewing a piece of evidence looks like. 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.
Next, we saw it from Shawn Yao. He was the one that talked about the height of the shooter. Now, he had a bunch of variables, sort of like the government has their pieces of evidence. He knew the positioning of the seat, the height of Professor Markel, the point of entry in the window. 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. The seat could have moved. He could have been in a different position, he goes, Look, I can't do that. That's looking at the evidence objectively. I can't tell you beyond a reasonable doubt that the height of the shooter was this but it's consistent with it. Translation: It fits but it's not enough.
Last we saw it from Sergeant Chris Corbitt, talked about the cell phone stuff, took the stand every other day in this trial. He was asked questions about the cell phone stuff. Some of my questions: That it wasn't accurate, what he was saying.
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. we heard it from Mr. Garcia's expert. You can be miles and miles and miles away.
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, he gave those answers. That's being objective. He didn't try to stick to his guns and go no, no, and fight it. Gave the good with the bad.
These are examples we have in 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. But again, the investigation of Katherine Magbanua was not objective.
Now, when IT was a kid, my father, he traveled a lot for business, and he told me a story once how he was out in the Midwest, and he's driving along a 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. There's a young kid out there. And on the side of the barn there's a few bullseyes and there's an arrow right in the bullseye. He had to find out how is it that this kid is so good, little kid, how is he so good at hitting the bullseye?
MR. DECOSTE: My father drove over. He asked him. The kid said, You want me to show you? The kid fired a shot into the side of the barn wildly missing all of the targets, but he hit the side of the barn; then took a pail of paint, walked up, painted the target around the arrow. That's what the government is trying to do here to Katherine Magbanua, 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 night clubs. They didn't go there. The idea was to paint the target around her to force her to cooperate.
Again, the government came up with their theory that it was the Adelsons. Okay. They identified Katherine Magbanua, built a case around her. 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.
Let's go to the call activity. The government has made a big issue that Charles Adelson was communicating with Katherine Magbanua and that Katherine Magbanua was communicating with Sigfredo Garcia. Now, if there were no connections in between these people whatsoever, maybe some evidence, but there were. Katherine was dating Charles Adelson. It's only natural that she's going to call him. 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. That's normal. That happens.
But the government, they gave you that very limited perception. They showed you certain days and go, They're talking. 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 Charles. You have it in evidence, in our evidence, not what they've submitted, in our evidence showing there's more calls that are in there. But it was important to pull a random day, 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 and the father of her children.
Next -- and we're talking about the 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.
Investigator Isom took the stand. He knew she was working at night clubs. Quote, knew. Zero investigation was done. There's no reason. And his answer was it was an oversight. 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, but zero investigation was done. No subpoenas sent out. No interviews.
The government had the audacity, despite the fact that it is their burden to say in their closing argument, where are the witnesses? where are the witnesses? As if we have a responsibility. Had the FBI walked into those night clubs, I have no doubt they would have given answers. But again, they never did. But why? why would they not do this? The reason is you go in there and you find 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 evidence? well, there's a problem with that. It's easier to just suppress it to make it seem like you never knew about it. Because you create something, you've 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. It's better to just turn a blind eye, like the ostrich with its head in the sand. I'm 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.
MR. DECOSTE: Although we didn't have to, we presented evidence. Now, put it in context, our ability to get evidence. You know, Katherine Magbanua has been sitting in custody, in confinement, for years. 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. we had to submit to you -- they presented it that there was no evidence whatsoever of cash-paying jobs. we presented to you from 2013 that she begins working promotions. Following later and continuing until 2015, working at a larger night club.
Now, there's one thing that the government didn't address, and I'm going to come back to the night clubs, 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, 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.
Now, the government brought up Yindra Valasquez, but you have to remember what she said. The government has tried to downplay the night club by saying “bar,” you know how much somebody would make, a couple hundred bucks. we're talking about a night club in Miami, not a bar. A night club in Miami, having special events for celebrities, having big, big, big nights. She worked with Yindra Valasquez at a different location at a different time. In the middle of 2014, Yindra valasquez said, I didn't know she was working there. well, you've got to remember during that time, Yindra Valasquez was pregnant with a child. Katherine, her children were born, several years old. They're leading different lives at that time.
The government presented a bar chart of the deposits, and they've really started using this late in trial. Put a spike right there. First and foremost, if you're receiving money from a murder, who in their right mind would deposit it? Those are acts of an innocent person not knowing where the person is coming from. You're not going to put that in a bank account. Did Sigfredo Garcia put money into his bank account? No. Luis Rivera? No.
Those are the actions of somebody who's getting their money from legitimate sources. So again, the government has put this chart together. They didn't exactly give their specialist, Mary Hull, all the information though.
Despite having from Facebook and knowing from Investigator Isom and Patrick Sanford, Agent Sanford, that she was working at night clubs, they just presented it to her and go, These are where she worked. No mention of cash. This is what this graph should look like, and these dates are based on the evidence that we have from their evidence and from the testimony of Ms. Magbanua.
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. 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.
I don't think I need to get in -- we know that Luis Rivera has not been in solitary confinement, that he's been in general population. TI don't need to get into what it can do to the mind of a person spending three years in solitary confinement, not knowing what day it is, what year it is.
Despite this, the government has 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. Their energy should have been spent investigating.
They also brought in Mary Hull for another thing. Now, Mary Hull was brought in. She was given limited information for her expert opinion. She got up on the stand and she talked about the yearly totals. Now, the whole point of this, and it's obvious to all of us, was to say look at 2013 and then look at 2014. She didn't explain what those dashes are. It was just presented to you. Look at the spike, painting those circles bolder and bolder.
MR. DECOSTE: 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, nor do you have it 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 what, we only have half the year.
But remember, late 2013 is when Katherine starts working doing brand promotion. And 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.
Let's go next to Ms. Magbanua's breast surgery. There is zero evidence, zero, that it was paid for from the proceeds of a homicide. Ms. Magbanua explained to you she's wanted to have it for a very long time. She's given birth to two children. It's something she's wanted to do. And the government gets up here and almost makes a mockery of it trying to play on words in between tips and her surgery. It's inappropriate in a first-degree murder trial.
Going back to Investigator Yao, Sergeant Corbitt, Jason Newlin and talking about how you objectively view something, you see those medical records, okay, a cash payment, there's debit card payments. What would Shawn Yao say? 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.
Next, the car. You know what's interesting? They brought out how Ms. Magbanua was arrested in that vehicle, meaning they had the opportunity to take photos of it. They had the opportunity to get the milage, the condition, all of that. But no, they wanted to present before a 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.
In the end, all you can take from that is that she bought an old -- 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 that they've submitted to you was proof -- that's not objective -- as proof of guilt.
Let's common sense look at this right now. All right? Katherine's innocent but let's imagine for a second that they had this agreement. How foolish is it to then create this legal paper trail to this person? That's not how that works. That's not how somebody -- if you're committing a crime of that magnitude, you do not want to have any connections.
Let's go to the paychecks now, the Adelson Institute. Submitted to you money from the Adelsons and she didn't work there. Again, painting that target. Along the same lines of common sense and how it would be foolish, again, you're creating a paper trail, employment records, tax documents. 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.
Now, it was presented over to Mary Hull, and 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. And Mary Hull got up there and goes, well, these checks are written before the date of work. Nonsense. Absolute nonsense. Every single one of these checks 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. They didn't have Mary Hull evaluate the check- writing practices for the other employees, but instead, they want to read the tea leaves and say that's evidence of a murder.
MR. DECOSTE: It went further, though. You would think -- and we're still on the topic of the Adelson Institute. You would think you help a family commit this murder that they wanted so bad, you're going to get some dental work on the house. They brought in text messages. we're in a first-degree murder trial trying to interpret text messages for guilt.
They submitted to you one where she got whitening gel from Charles Adelson. But they didn't give you -- again, we had to bring it in and show it to you how months after the murder, she's paying the Adelson Institute $206.50. And we know from the text messages around that same time that it was because Katherine Magbanua went there for work. Now, the government tried to differentiate and go, wait a second, it's clear she saw Harvey Adelson. Yeah, his son, I'm pretty sure, could get a discount from dad, the person that helped commit a murder if any of that were true.
But the text messages went even further. These checks, and we know it from the government's exhibit, these checks began September 15th. Text messages between Katherine Magbanua and Charles Adelson at that exact -- the day before: "I'll let you know on my availability so you can know more or less how many hours I can dedicate. Thank you again.”
They tried to introduce text messages, say, well, that's about wisdom teeth. I had my wisdom teeth taken 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.
The government argued that there was no evidence. They've said that a lot: well, there was no evidence of it so it must not be true. During the -- and I almost called it "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 and say, whoa, whoa, whoa, she was never at the location. And why would the Adelson Institute be paying for Charles 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. Call E talks about work as well, too.
Back on the call activity, 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. Rivera was on the stand and he said his number was 934-6615. 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 had the number of 935-6615.
The government still wants to be able to argue and say, Well, you know, it's close. It's evidence. No subpoena was ever sent to find out who either of those phone numbers belonged to. It would be very easy for Luis Rivera, looking at the call records which he 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've talked a little bit about cell phone activity. Now, they put a map up there and they've got a dot right near the car rental place. 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 does the 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 guilt. what they're not doing is looking at any of it objectively.
MR. DECOSTE: Now, 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 bolder circles. They did the wiretaps. They did the bump, and they also had the wiretaps. Now, these wiretaps -- and it's part of this stack here. Again, this is everything. We've already gone through most of this stuff.
For months, they listen 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, only her needing to know less.
Now, the fact that Charles Adelson and Katherine Magbanua were communicating, it wasn't irregular. we brought that out on the stand that before the bump, before anybody may think, hey, we might be getting listened to, that Charles Adelson and Katherine Magbanua were still communicating. So it wasn't just out of the blue, this bump happens, and all of a sudden there's phone calls.
Now, the way the bump was done dictated the actions that then followed. It was controlled. The undercover, and you'll be able to watch it again if you need to -- referenced "son," referenced "Katherine" twice, and referenced "Tuto." Now, the letter that was handed, we have to take the FBI's word for what was actually written on there and whether there were not other instructions. How is it that the Federal Bureau of Investigation with all of their resources, infinite, 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. The response from Agent Sanford as to why there was not a copy of it: It slipped their minds.
Now, had the bump been uncontrolled, had it been that they just handed the piece of paper, 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? 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 flier and see what happens. Plant that seed and see what happens. Tickle -- whatever they said, tickle the wire and see what happens, not give instructions on what to do.
I submit to you that Katherine was being used in those communications by Charles Adelson who, as Katherine said, definitely involved. 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. Again, you want to charge him, charge him.
In the first three phone calls -- and we know this from Agent Sanford, that Charles Adelson says to Donna Adelson, Don't talk in the apartment. Now, it's easy to understand what that meant: Don't say anything that's going to get us in trouble.
Now, the government talks about whatsApp and how people can be communicating from whatsApp when it helps their theory, but when it doesn't and it explains things, disregard them. Donna Adelson assumed that the ex-girlfriend was the most recent ex-girlfriend. Look, if I say to my mother, my ex-girlfriend, she's not going to think, well, is it the one from, you know, high school or is it the last one? It's natural. That's a natural thing that a mother would do.
MR. DECOSTE: But there's additional communications. There's additional meetings. Charles is not sure. Eventually 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, to 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 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, let's get a little bit more into the action. I can't say why Charles 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 about Katherine Magbanua.
Now, when that happens, the bump happens, Charles Adelson can't call over to Sigfredo Garcia. You don't know is he already working with the police? If I contact him, I'm going to get in trouble. I've got to distance it. Katherine -- the bump gave him the idea to use Katherine as a buffer. Find out who it is. Call that number.
Think about this: He believes -- or he's involved in this conspiracy with Katherine, and he's thinking, hey, it could be the FBI, it could be the cops, that he would say, hey, I want you to call that number knowing that she -- she could say something wrong, she could do something wrong to incriminate him. The reason why he was so confident with having her call is because he knew she didn't know anything. Now let's talk about the flow of knowledge.
Your Honor, let me know if you need me to slide this back for you.
Now, the bump happens with Donna Adelson, happens here. cConveys the information over to Charles 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 Dilmore talked about the fact how there was communication in between Luis Rivera and Sigfredo Garcia. Luis Rivera was in federal custody and he was contacting a friend to send text messages to certain people. Luis Rivera identified that on the stand.
Investigator Dilmore, in reviewing Sigfredo Garcia's phone, saw that there were communications with "T,” Talking about Luis Rivera. So the flow of information from the bump made it around the horn. One would think that if this is a conspiracy, the information is then going to flow back, but it didn't. Agent Sanford said how there was a point where Charles Adelson was sure it was the cops and that he tells Katherine. If it were set up in the way that they think it was, that information would have flown back and Katherine would have been the one telling him. who told Charles Adelson?
Let's turn now to Dulce Vita. Can't understand any of it, much of it. 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. 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 of the murder of his brother-in-law. It was just another day sitting down with Charles 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. 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 Charles giving hypotheticals of what Katherine should do and say to scare off the person. And he's mostly describing himself: Be afraid of me because I may come back. I may do something. But it was like all the other times with Charles. It was just him talking and talking and talking.
MR. DECOSTE: Now, the government brought out the fact that the cops weren't contacted. we covered this a lot on cross-examination. Katherine wasn't bumped or harassed 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 is 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 or -- 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 -- well, finding out things later on from Charles 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 F'ing FBI.
If she were involved in this conspiracy thinking, well, it's either Latin Kings or whoever did this or it's the FBI, those words, I'm about to go to the FBI, and the way that she said it, which was not a "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.
Even at that point, it wasn't enough. It wasn't enough evidence. The only remaining piece of evidence, the only thing, which brings us to our second topic, this guy right here. Luis Rivera. Second topic: Luis Rivera, outright dismissal of the problems with his story. Not the facts, with his story.
we had approximately 40 witnesses testify during this trial, maybe a little bit more, maybe a few less. He is the only one, the only one -- Mary Hull is not a witness to events. Chris Corbitt is not a witness to events. The only one is Luis Rivera.
Now, the consensus among the Tallahassee Police Department and the FBI is that prior to Rivera, it was not enough to arrest. Now, arresting somebody is a much lower standard than trial. 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. 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 is in the other room with his attorney and Ms. Cappleman is in the other room, if he had said Katherine at that time, she would have been arrested the next day. But it wasn't until he finally realized, well, I've got to give them more. And we'll talk about that in a minute. I've got to give them more.
Because Luis Rivera couldn't say, well, yeah, Sigfredo Garcia was involved. That wouldn't get hima deal. If he wanted a deal, he had to give them something. He cooperates. The very next day Katherine is arrested. 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.
His testimony was a convoluted mess, full of contradictions. From that convoluted mess, you can take two things and only two things that apply to Katherine. 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 that on July 19th Katherine paid money.
Now, the “heard calls" thing, that's an easy lie. It's an easy lie for him. He has the reports. He has the police reports. And from Agent Sanford, we know that -- 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. 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. The answer to that, to quote Shoddrick Nobles, nope. Sergeant Corbitt got up on the stand and he showed you that there was a 29-second phone call. 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.
Let's go to 7/19, another easy lie. He has the reports. He has the details, the general vicinity of people and places. It's easy for him to build his lies within that framework. But another fail. He said, Oh, Katherine called me. Now, he knew that there was phone communication but he didn't know the specifics. Katherine called me. Again, wrong. Sergeant Corbitt got up there and he goes, No, it was Luis Rivera calling her.
The government will get up here and probably say this is a minor detail. It's a huge detail because these are the pieces of evidence that Luis Rivera is giving, and Luis Rivera is the sole witness against her. He also said that he was at the barber shop, over at Ray's Barber Shop on Biscayne. wrong. He was in a different municipality. He was over in Miami Beach and we know that from the records.
So how and why? How and why did all this happen? The guy was looking at the death penalty. The evidence against him, strong. The evidence against him, strong. He's already doing 12 years. Meanwhile, the government, desperate to do something with their case, and they cut a deal. Now, again, he'd get nothing for naming somebody who they already had a -- Sigfredo Garcia was arrested alongside with Luis Rivera. You're not going to get anything by naming the other guy that's already charged. You've got to name new people.
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. Do 12, maybe 12 in federal custody. Then there's seven. Maybe he does another four or five years. Fora guy like Luis Rivera, that's just the cost of doing business. That's a cost of being a criminal. That's expected.
Now, this whole thing about threats that, you know, because he -- because he snitched that he's a threat, this guy has been the boss of a gang since he was 15 years old. Different rules apply to him. Clearly, they do because he's in general population and he hasn't been touched.
That's why it happened, but how did it happen? Again, I've gone over it but it's worth going over again one time how Luis Rivera was able to do this. He has reports that detail things, not to the level that you saw in this trial but reports laying out the framework of things. He's also got the media. You've seen it during this trial all over the place, and it's been all over the place. He has TV in jail. He's got friends and family outside. He knew the facts. He knew the theory. That gave him the framework.
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. But I think that this guy, the head of a gang at 15 years old, that's a smart guy. Be it either he figured it out himself or somebody told him, that's what he did. But he could only think one-dimensional ly. 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 Katherine. But Wendi Adelson was also mentioned all over the place, 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 that Sigfredo Garcia said, That's the woman. But his story -- this doesn't happen with the truth. You usually get more of a story at the beginning and then your memory fades over time, 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 with the kids and they walked into the house on Trescott.
MR. DECOSTE: Now, 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. They didn't tell him. His attorneys didn't tell him. Nobody told him. 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, his story is now he sees the kids walking into the house. It's not possible. Doesn't matter who told him what. 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 17th, 2014, the kids were dropped off at 8:30 a.m. at Creative Pre-School.
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 is 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.
He added more to his lie, to his story: You know, I got mad at Sigfredo when he got 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's no phone call -- there's 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. That's defensive work, guys.
There was an additional time that he tried to give up Wendi, 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 and that they are -- Professor Markel, and that they follow him to the Creative Pre-School, then they lose him. well, we know from Jeffrey Lacasse that's wrong, because Jeffrey Lacasse had a memory of that timeframe and said Wendi had the kids. Professor Markel would not have been dropping off the kids or picking them up that day.
Now, there's other minor inconsistencies. The owl, this is an easy one. You know, Luis Rivera spins a lie. He doesn't give a timeframe. And then he goes, Oh, yeah, yeah, yeah, then Katherine called. Again, there's normal communication between Katherine Magbanua and Sigfredo Garcia, so it's easy to say this lie.
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.
They did it for Katherine. They did it for Sigfredo to paint those circles, or to try, but they don't do it for him. My belief is they didn't trust him. we dig any deeper on this, it's going -- 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 was other inconsistencies: when he learned of it, it was either before, it was during or after; whether there was one gun or two guns; whether he was the driver on the first trip but then there was a citation. You know, his defense to all that was, well, you know, we were high and drunk, but that didn't make sense because Trooper Downing was like -- I don't know if he was a captain, lieutenant, but he was high ranking. And he was like, If that were going on, if people were smoking marijuana, they were drinking inside of a car, everybody knows that smell would be in there, and an FHP trooper would have pulled them out and questioned them on that. He's doing that as a defense to getting caught ina lie, because if he gets caught, he can go, Hey, I was drunk, I was high. This is not a dumb man.
And along that line, he says he can't read or write. well, that's odd. we know he was driving because of the citation. 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. That's a way to defend against the lies: Luis, why don't you -- I can't read. That guy can read. Don't be fooled.
About 40 witnesses in this case. Not one -- 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 -- 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. who is he protecting? what is he protecting?
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. No recordings. why would that happen? That's inexcusable. The Tallahassee Police Department doesn't have a policy that you can't record. 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, nah, I didn't do a -- 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. These prosecutors want you to trust him. This man can't be trusted. 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, has tried to say, Hey, that has nothing to do with the Latin Kings. They're trying to protect their convictions. He's trying to protect his brothers. 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.
No investigation done. Nobody ever met with him. Nobody ever tried to find him. Conveniently, he's now dead and nobody will ever know. whether Luis Rivera was telling the truth or not about this guy, I have no idea. 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 there was a connection.
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 earlier in the trial, and he was a one-time boyfriend of wendi Adelson. Now, Jeffrey Lacasse was testifying about things many years ago. His inconsistencies were reasonable. Memories fade with time. 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, but in the beginning he was a suspect. And he was removed as a suspect because they objectively investigated him. He showed bank records. They got surveillance from walmart. They spoke to him and they cleared him. Nothing like that was done with Ms. Magbanua.
MR. DECOSTE: But they have multiple recorded interviews. They interview this guy who they believe is 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 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. 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. what was the name of the restaurant you were at? That's reasonable. Somehow Luis Rivera, his memory gets better in time with things and worse in other areas. It's because it's not based in reality. It's based on trying to weave a lie.
Now, Jeffrey Lacasse was up there. He was non-evasive. He answered the questions. Now, Jeffrey Lacasse, a professor at FSU, very smart guy, book-smart guy. Luis Rivera, maybe not book smart but definitely a street-smart guy. Again, hundreds of people underneath him at the age of 15. That's a born leader, and also a born criminal.
Now, Mr. Zangeneh went over this with you. I'm going to go through it a little bit more talking about jury instructions and how you should weigh his testimony. After the enumerated topics, you're going to have this one where it says you must consider the testimony of some witnesses with more caution than others. And what they're talking about: People that are in Luis Rivera's situation, defendants who say they committed a crime with somebody else and are going to get a better deal by testifying.
This is the same instruction you'd have if, you know, a guy buying drugs is going to testify against the guy selling a small amount of drugs for low-level felony cases. 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.
Did the witness seem to have an opportunity to see and know the things about which the witness testified? My answer to that is no because none of it is true. His response to it: I was drunk and high, I don't remember.
Did the witness seem to have an accurate memory? Not at all, because he was impeached by the actual facts in this case. Not other witnesses, not stuff that we've -- by the evidence in the case. The kids were in preschool. There was no phone call.
was the witness honest and straightforward in answering the attorneys’ questions? No.
Did the witness have some interest in how the case should be decided? They've got him by the neck. You violated the agreement. He's looking at a violation of probation.
Does the witness's testimony agree with the other testimony and other evidence in the case? No. The electronic evidence, the evidence that can't lie, cell phone records. I don't think Creative Pre-School is going to be lying. It's a stipulation between the parties meaning it's true.
Has the 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 gotten.
Has 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.
Has the witness been convicted of a felony? Five times federal racketeering case. Now, for those of you that don't know, the RICO statute, that's the things 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 Garcia 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, this testimony, doesn't belong in either of those piles. Belongs right there.
Let's go back to the how and the why. Rivera, we've reviewed it. How and why are we here in trial? The government, desperate.
JUDGE HANKINSON: If you're going into a different area, we're getting pretty close to needing a break for the jury.
MR. DECOSTE: Different area. Perfect time.
JUDGE HANKINSON: why don't we take ten minutes.
(Jury exits.)
(A recess in the proceeding.)
JUDGE HANKINSON: Let's have the jury, please.
(jury enters.)
JUDGE HANKINSON: You may proceed, Mr. DeCoste.
MR. DECOSTE: Thank you, Your Honor.
Still on the topic of Luis Rivera, the government brought up how he got -- although he got most of the things wrong, he got some facts right. Like, how would he know that Dan Markel was leaving town? well, he had the evidence, but if he's in an agreement with Sigfredo Garcia, he's going to know that information. If, to clear that up, Charles Adelson is in agreement with Sigfredo Garcia, he's going to know that information.
And then 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. But the government coming up here and saying, well, he got -- 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, but he got those two right so he should pass. That wouldn't fly on 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. But 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 we'll get our case. what they didn't count on, however, is that Katherine Magbanua was innocent. And here we are in trial.
Now, the government, during their cross-examination of Ms. Magbanua, offensively made the comment of a payoff. First, you know this, what attorneys say is not evidence. It's a sign of their desperation. 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 is taking this case to trial for other reasons. It's also offensive because there's no amount of money that you could pay a mother of two -- I'm not a mother. 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.
So let me get this: Their thought is that Katherine sacrifices seeing her children so that wendi can be with hers? They can't see it. They can't understand it, that she's innocent and she wasn't involved.
How and why? So then how did this murder happen? Look, I'm in no position to get up here and say, well, I'm positive that's what happened. 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 Charles Adelson and Sigfredo Garcia, but there were. And again, it wasn't through Katherine Magbanua; it was about her.
So let's talk about the position that each one of them were in. Charles Adelson wanted the murder to happen. we know that from Jeffrey Lacasse. He had money. Sigfredo Garcia wanted Katherine Magbanua back. we know that from multiple witnesses. And he had the means. The government's response to this theory -- the government's response to this theory is that there's no evidence -- that there's no evidence of a connection in between these two gentlemen.
They asked Sergeant Corbitt on the stand, You've gone through hundreds of thousands of messages and iCloud information for Charles Adelson. Is there any indication of communication between the two, and his answer was no. Then on my cross-examination, I brought out how weeks before the murder -- a month before the murder, there was an indiction of communication. I'm not trying to say the communication happened that day, but it was clear that Sigfredo Garcia was trying to get in contact. And Katherine Magbanua, through her messages, knew that to get in contact with Charles Adelson.
Now, 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. Maybe, wild thought, they were communicating through other means because he 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 Charles Adelson around the time of these messages. 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 a head -- 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.
There's also the confrontation on July 1st. we'll get into that more, but there was a connection between the two of them. Not through Katherine Magbanua, about her. But the government -- their response: There's no evidence of this. That's not how this works. That's not their burden.
we talked about this during jury selection, what their burden is, how it's not just a matter of them giving a reasonable explanation and saying it fits. 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. Zangeneh talked about the burden of proof, and I'm not going to go through it again, but this is here for the protection of all of those accused, for the protection of all of us as citizens, including you as jurors so that years from now there's not regret for having made a wrong decision. That's why. Those are the reasons why this burden of proof is so high.
Third topic: Katherine. Evidence of Katherine Magbanua's innocence that's just been pushed to the side. They have years’ worth of text message, years, hundreds of thousands of text messages with these people that they believe she was involved with. Nothing about involvement in a murder. Wiretaps, months’ worth, hundreds of hours, nothing. Her actions. Now, you best believe had she gotten rid of her phone number or her phone, they'd be up here arguing evidence of guilt, but she didn't.
She had 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 seven 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. Sigfredo Garcia got rid of his phone. Luis Rivera got rid of his phone. You would imagine that if she's involved in a conspiracy with these others, they would have told her, Hey, this is what you've got to do.
The deposits. No deposits of cash for Luis Rivera. No deposits of cash for Sigfredo Garcia. But Katherine Magbanua, right around the time of the homicide, deposits money into an account. They want you to believe that she's smart enough to have pulled off this crime and then stupid enough to have done that. we talked about it in voir dire. You cannot be smart and stupid at the same time. well, actually, I take that back because Luis Rivera has tried to do it.
She didn't flee. Had she taken two steps when they tried to arrest her, they would 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 has been arrested, Luis Rivera has been arrested, her name is 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 their language, somebody guilty would have left. She stayed.
Let's go back to Luis Rivera. Violent gang leader. The lead investigators and agents on this case tried to dance around and go, well, I don't know about that. Charged with murder. Head of a gang since 15. Violent gang leader. Convicted many times over: RICO, murder. Supplies -- he rented the car, rented the hotel, bought the bullets that entered Dan Markel's head. Bought the gun that fired those bullets. They made a deal with him: No death, do a few more years. Didn't tell him about the violation of probation. A couple of years for that guy.
MR. DECOSTE: Katherine Magbanua, college graduate, first-time through the system. Ms. Cappleman herself said, and it came out in evidence, is the key to her own freedom. Is she willing to cooperate? If she had any information, which she does not, they would probably give her the key to the city. 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. She's innocent. That is the only explanation.
Let's draw a comparison, guys. Let's drawa comparison over to wendi Adelson, their witness, somebody who they believe was -- I don't know who they think is behind it -- that they believe is involved, a trained attorney, had to be subpoenaed, had to be given -- and the judge explained it -- immunity. She laughed at them. Laughed at them. No, I'm not going to be arrested. Ms. 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.
She even confessed to what would be crimes, not reporting cash tips on her tax returns. Look, I don't condone it, but I'm imagining it's a very common practice when it comes to cash tips, which she admitted to. what does that mean? It means she's forthcoming. Doesn't mean that she was involved in a murder.
Now, we did it for Luis Rivera. 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? It's not that tug-of-war that we talked about in jury selection. It's that rope in gym class hanging from the ceiling that the government has to climb all by themselves.
So it's not a matter of: Do you believe Luis Rivera or Katherine Magbanua? If that were the case, I'd have no doubt that you would say, I believe Katherine Magbanua more. But I'm not trying to draw a comparison in between the two, but it's important to evaluate for Katherine Magbanua.
Did the witness seem to have an opportunity -- Your Honor, is that big enough for you?
JUDGE HANKINSON: I'm worried about them more than me. I know what it says.
MR. DECOSTE: Did the witness seem to have an opportunity to see and know the things about which the witness testified? Did the witness seem to have an accurate memory? Was the witness honest and straightforward in answering the attorneys’ questions? Did the witness have some interest in how the case should be decided? Now, I need to answer that of course. Everything is on the line here for her.
Does the witness's testimony agree with the other testimony and other evidence in this case? Yes. Had they investigated it, they would know that it all matches up.
Has the witness been offered or received any money, preferred treatment, or other benefit in order to get the witnesses to testify? No.
Had any pressure or threat been used against the witness that affected the truth of the witness's testimony? Threats were made on her but not in this context.
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? Luis Rivera, all those boxes are checked. Katherine Magbanua, they're not.
This is a case that began in desperation. Charles 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 Charles Adelson -- and we know it from the messages, we know it from Katherine Magbanua -- ghosted her, broke up with her.
They keep wanting to say that there's no contact in between Charles Adelson and Sigfredo Garcia. 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. He was potentially calling Charles Adelson. The progression of that is that at some point in time you confront him.
Now, the one problem with the prosecution's theory -- again, if you get deeper into it, things start to not make sense. July 1st, there's this confrontation. There's this fight between Charles Adelson and Sigfredo Garcia. Now, Sigfredo Garcia doesn't run up to Katherine Magbanua's window. He runs up to Charles Adelson's window and starts pounding on it. Seventeen days later the murder happens.
You can't resolve that. You can't figure it out under their theory that -- and 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 Charles didn't know that on the other end it was Sigfredo, and Sigfredo didn't know on the other end that it was for Charles. Remember what Luis Rivera said. we're doing it for the dentist's sister. Then they would have known exactly and everybody knew who the dentist was, that they're doing it for Charles Adelson.
But it doesn't make sense 17 days before the murder happens that these guys are fighting with each other and somehow Katherine is caught in the middle of it. 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. But he didn't. That trip in June to Key west was supposed to be -- and we know it from Agent Sanford -- the good-bye tour. But on July 1st they're still hanging out together. was there a situation that Charles Adelson felt that the other end didn't live up to their end of the bargain because it didn't happen in June? Seventeen days later after this argument, he's dead and Charles Adelson breaks up with Katherine Magbanua.
Now, again, this is a case that began in desperation and it continued in desperation. Luis Rivera and the government. Rivera, he wanted his life. 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. And he wanted his freedom. The government's desperation, wanted to be able to move forward with their theory.
Now, their presentation shows this desperation. They gave bits and pieces. 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 becomes more square, bigger and bigger, and it no longer fits. They were also painting that target. we had to show the rest. The defense, we had to show the rest of that information.
MR. DECOSTE: 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. That's a real photo with Katherine's credit card right there. Out of the three versions of this photo -- now, these look the same. But if you look at Katherine's glasses in relation to Wendi's shoulder, you'll see that it actually moves. Out of three photos that they had of this day, they present to you the photo without Katherine's credit card, because this would indicate that Katherine is paying for those drinks, paying for that day, paying for herself.
But the attempts to guide you -- or “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. But one thing that we pointed out, this was normal behavior for Katherine where she would make deposits at two different banks on the same day. Again, trying to paint that picture, paint that target brighter and brighter.
It continued when they were talking to Sergeant Chris Corbitt about text messages, and this happened yesterday where they actually only had him read part of the message where Charles Adelson offered to help out. 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 other text messages talking about how she was paying him back for loans.
One of the big pieces of evidence from Luis Rivera, or they believe is evidence, that's his story the morning of July 19th. Now, again, the stuff with the cell phone locations, that's generalized areas. Don't be misled by their evidence believing that that means that somebody was at the exact location. we know from the experts that I could be here with my phone but ping off a tower miles away. But one thing Luis Rivera said, he goes, Katherine called me.
when the government had Sergeant Corbitt up on the stand, offensively -- and this is their attempts to make their case fit, to misguide you -- they went and they referenced the 10:22 call. They went first to the 10:22 call because that's a call from Katherine Magbanua to Luis Rivera. What they didn't do is point out what I had to come up on cross-examination as if you missed it yourselves, which I doubt, that the first call was from Luis Rivera to Katherine Magbanua.
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. This is your conspiracy. There was connection in between the two. It was about Katherine Magbanua, not through her.
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. But there are limitations. 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.
Now, Your Honor, if I can have one brief second.
JUDGE HANKINSON: You may.
MR. DECOSTE: The government's desperation -- and I promised that I would come back to Luis Rivera one last time. Their desperation led to blindness. I promise I'm almost done. Their desperation has led to their blindness of facts.
Luis Rivera was the shooter. Luis Rivera got up on the stand, and he told you how Dan Markel was on the phone, how Dan Markel put his arm up. Explain to me how he could see in that dark garage and see all of that. He knows that because he's the one that pulled the gun on Dan Markel and killed him. There's no way you're seeing that.
Ladies and gentlemen, this is what a wrongful prosecution looks like. It's within your power to stop it from becoming a wrongful conviction. Katherine Magbanua is innocent. 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. She's been in custody for three years. It's time for her to go home.
Thank you, Your Honor.
JUDGE HANKINSON: State.
MS. CAPPLEMAN: May it please the Court, Counsel.
Okay. Thanks for hanging in there with us. The defense talked about there was no investigation in this case. These officers scoured the earth for that Prius. That looked at hundreds of hours of surveillance. They pulled surveillance off city buses to find evidence in this case, and they pulled that needle out of the haystack. 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. 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.
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 lawyers 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. He's not on trial. These two are.
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. 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. what possible motive would I have to prosecute an innocent person? In what universe would that assist me in getting the Adelsons?
Someone requesting a trial does not mean they're innocent. Every criminal defendant has a right to a trial. She didn't flee the country so she must be innocent. 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 it in 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 does -- it is unfortunate. It is sad. This is sad for everybody involved, but this is about those defendants’ choices that are sitting across the room from you.
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? I don't agree 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 -- couple things, defendant's statements and also defendant testifying. They 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. This statement is obviously untruthful, as it is completely refuted by all the other evidence in the case.
The evidence against -- evidence against Mr. Garcia is overwhelming. 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 Shoddrick into the motel; they shot this man in broad daylight in Betton Hills. They don't care about being stupid. why would he do it? For a few bucks which he blew immediately to impress and win back Ms. Magbanua. His conduct is the very definition of cold-blooded.
MS. CAPPLEMAN: And Defendant Magbanua chose to take the witness stand. we didn't hear very much about that. She doesn't know anything about the crime at all so how can she be cross-examined? She don't know nothing. Even after the bump and her involvement in investigating the woman -- I mean the man that approached Ms. -- gosh, I can't talk.
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 doesn't know anything about the murder? She's telling y'all she didn't even know the man was killed, period, until Garcia got arrested.
what did we learn through her testimony? we learned that Sigfredo Garcia and Luis Rivera both have reputations for violence. That fits. She -- 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 Tuto 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 questions she was being asked unless her lawyer put the answer in the question. She's telling the truth about having no memory as to what the conversation was between she and Charlie 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 but she has no memory of it.
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, I didn't go on the weekends. I worked for Charlie as his personal assistant. well, why is Donna stroking the checks if she's working for Charlie?
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? 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? Believe it.
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? There's only one reason to speak in code. I mean, I'm not -- I'm really not trying to be cute. There is not a reason to speak in code when you're giving somebody a phone number.
And then I would offer you the following question and answer: Question: Did you talk to Luis Rivera on the day of the money drop? Answer: Yes. That implies there was a money drop. Luis Rivera didn't say -- eight minutes. I'm sorry, guys.
All right. Luis Rivera, there's this idea out there of --
JUDGE HANKINSON: I'll keep track of time, Ms. Norris.
MS. CAPPLEMAN: Oh, she's not right? Is it less than eight minutes?
JUDGE HANKINSON: No. You have 12 minutes.
MS. CAPPLEMAN: Okay. I'll only take eight.
All right. So Luis Rivera, the idea is that he did not say Katherine Magbanua's name in the initial meetings, and somehow he was told, You're not going to get a deal unless you say a name. This is just not true. Nobody has testified to that. The lawyers saying it does not make it true.
we talk about his inconsistencies. And we talk about inconsistencies at jury selection. 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?
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, get all these little intricate things correct. I mean, the reason why you believe him is not because he's some great guy. He's the worst. He's a killer. 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.
He's not studying the evidence and building his lies within that framework. They actually said he's a smart guy. The guy misspelled his own name on the witness stand: L-I-U-S. The man rented a car in his own name to come do a murder. You can't compare him to Jeffrey Lacasse who is a professor. 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? 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? He's flipping on his best friend from childhood and his best friend's wife. why wouldn't he do that? If he was actually hired by Charlie Adelson, he would tell us that.
Think about whether the inconsistencies that have been cited by the defense are truly inconsistent. Use caution in distinguishing between nit-picking versus an inconsistency that's going to constitute a reasonable doubt. Is the statement truly inconsistent or is it a routine situation where the witness is failing to recall every detail? Does the witness appear to be fabricating his testimony? These are questions only you can answer when trying to evaluate any inconsistencies that were present in the witnesses’ testimony in this case.
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. when he got the speeding ticket, whether the picture of Dan Markel was black-and-white or color, all things that we don't really care about. And, I mean, you know, it's up to you.
why -- why, if he was not hired by Garcia, would he be giving up Garcia? It doesn't make any sense. The defense says Garcia would never do this job for Charlie Adelson. well, that may be true, but you'd be surprised how much people would set aside for the right amount of money. He also would do anything for Katherine Magbanua, and she was the one asking.
And thirdly, I'm not sure he knew he was doing it for Charlie Adelson, because he told Rivera they were for wendi. 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.
The wendi sighting. Okay. So the evidence was that it was 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 the woman he saw walk 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.
MS. CAPPLEMAN: So you 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 have 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. while I have no reason to doubt they saw somebody on the sidewalk, I cannot tell you that it was Wendi Adelson. I do not have that evidence.
They have tried and tried to draw these links between, you know, Rivera and some other Latin King coming up here, or Charlie dealing with -- directly with Sigfredo Garcia in the absence of Ms. Magbanua, but there's just no evidence of it, and you have to base your verdict on the evidence. That's in the jury instructions. I'm not making it up. 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.
All right. It's a race. All right. So I want to talk just for a moment at the very end here about the shape of this conspiracy. It's like a train. They can be, you know, a cluster. They can be like spokes of a wheel. But in this case they're really kind of -- appears that these -- each of these people are isolated from the other ones. Donna's only connection to the conspiracy is Charlie. Charlie's connection is -- it 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.
why did she pay for Garcia's lawyer? Not because the lawyer did anything wrong. I'm not throwing shade at him. She paid for another coconspirator's attorney. That's relevant for your consideration to whether or not this is a conspiracy. 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.
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. without her, none of this happens. without her, we're not sitting here today.
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 the evidence and whether it's proven beyond a reasonable doubt. Do not let concerns about sentencing or ramifications, sympathies or other things like that bleed into your deliberations. 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, phone activity, iCloud messages, and the absence of any other reasonable explanation should all lead you to one conclusion. That image that I have -- would you pull that out?
This is the full picture, not bits and pieces, the full picture. This is the clean window. Rivera was all in for this job. This was his best friend. Whether it was a robbery or murder or whatever. He would have been the shooter. It just didn't happen that way. Maybe not in front of the kids, but certainly he would have been the shooter.
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.
Does Rivera have a network of criminals he could call on? Yes, but there's no evidence that he did that in this case. 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. 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.
MS. CAPPLEMAN: You -- when you consider the big picture of this case, often the simplest explanation is the right one. You can have 15 different explanations for what happened to this man, 15 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. Or you can have -- so you can explain away everything. And if it's one thing, then you can be very successful because, okay, I was working in the clubs.
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, 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: Let's get back to your jury instructions, page 13, please.
All right. 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, e-mail, 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 have 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. The rules do not allow you to bring your phones or any of those types of electronic devices into the jury room during deliberations. Kindly leave those devices with the bailiff while you deliberate.
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. If you have a question, I will talk with the attorneys before I answer so it may take some time. You may continue your deliberations while you wait for my answer. I will answer any questions, if I can, in writing or orally here in open court.
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.
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. 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. No juror has the right to violate rules we all share.
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 into evidence so be patient with us a little bit for that.
You will take breaks periodically during your deliberations. In other words, there's -- you know, 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 until everybody is back.
we will feed you this evening. If we have not reached a verdict by about 8:00 or 9:00 o'clock, then we're going to take you to a hotel. You can report to your family and those people that are concerned about you 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.
So anyway, let's go sidebar for a minute.
(Bench Conference was held as follows:)
JUDGE HANKINSON: The deputy is exchanging the jury instructions. I decided to go ahead and just give everybody a clean copy with the minor changes I made so they'll all have those.
Any objections to the instructions as given?
MS. CAPPLEMAN: No, sir.
MR. ZANGENEH: No, Judge.
MS. KAWASS: No, sir.
JUDGE HANKINSON: My notes indicate Professor Barton is our alternate. Are we in agreement with that?
MR. ZANGENEH: Yes, Sir.
MS. CAPPLEMAN: Yes, Your Honor.
MS. KAWASS: Yes, Your Honor.
JUDGE HANKINSON: All right. So I'll hold him. what I'm going to tell him is that he's not to discuss the case with anyone, and we'll get a number from him and we'll] advise him if there's a first-degree murder conviction that he's needed back as an alternate for that phase of the proceeding.
I want the attorneys to go through the evidence. I think you've gone through it all right, but let's make sure what's being sent to the jury room is exactly what was placed in evidence. I know we have a lot of things that were marked for identification. Let's make sure those are corrected. And we'll go on the record and confirm with everybody that they've had a chance to go through that and make sure what's being sent to the jury room is what was placed in evidence.
Barbara has prepared a redacted evidence list to go with the evidence. I want to read over that, see if there's anything about the way it's described on the list that you have any issue with. If you have any issue how it's described on the list, we can also discuss that. I've gone over it. It appears to be pretty generic, but if there's something about it that you don't like, let me know.
As I said, I've provided the jury with corrected instructions. Anything else from the State?
MS. CAPPLEMAN: No, Your Honor.
MR. ZANGENEH: NO, Sir.
JUDGE HANKINSON: Garcia?
All right. Magbanua?
MS. KAWASS: No, Your Honor.
JUDGE HANKINSON: Okay. Y'all can be going down through the evidence as I talk to the alternate.
(Bench Conference was concluded.)
JUDGE HANKINSON: All right. Professor Barton, you need to remain here with us.
Rest of you may step out, begin your deliberations. Take your notes with you. Take your jury instructions, your verdict form. 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.
(Jury exits to deliberate.)
JUDGE HANKINSON: The attorneys can be going through the evidence.
Everybody be seated, please, or step out of the courtroom. The attorneys can be going through the evidence while --
we have alternates in this case. We started with two. we ended up with one. You are our alternate. I hope you don't feel like we've wasted 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 if we lost another juror. If we hadn't had alternates, frankly, we would have been done when Ms. Fondo got sick. So anyway, those do things do happen. we do appreciate your time and attention.
we still have a possible -- potential for needing you further. If there's a first-degree murder verdict as to Mr. Garcia, there will be a penalty phase proceeding. I'm going to talk with the attorneys as to exactly when that will start. It won't be -- it won't be this week. It'll be either next Monday or Tuesday. I'm going to talk with them about the exact scheduling of that. That will probably take two days.
If that occurs, we will need you back for that. Because of that, I would ask that you do two things for me: I would ask that you not discuss the case with anyone. 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've resolved the case.
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. 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, you know, a couple days before we know what's going on, so don't -- you know, 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?
JUROR: No.
JUDGE HANKINSON: The clerk asked me to give you this note. I guess this is just an attendance letter. I don't know whether you need that or not, but we appreciate you being with us.
Deputy Granger, are you going to get him with court administration and get him safely on his way?
Thank you, sir.
(Alternate juror exits.)
JUDGE HANKINSON: Have the attorneys had the opportunity to go through the evidence? we're still doing it?
It might speed things -- why don't I go burn a copy of that? Is that the evidence list?
COURT CLERK: Yes.
JUDGE HANKINSON: 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 after --
COURT CLERK: That's the one for the jury.
JUDGE HANKINSON: Right. That's what -- that's what I want them to see. I'll make a copy. tI'11 be back in about 15 minutes. I want to confirm on the record.
(A recess in the proceeding.)
JUDGE HANKINSON: Did everybody have a chance to go through the evidence and confirm what's being sent to the jury room is what was properly placed into evidence?
MR. ZANGENEH: Judge, yeah, for Mr. Garcia, we did, and it is consistent with what was admitted.
MS. KAWASS: Same for Ms. Magbanua, Your Honor.
MS. NORRIS: Same for the State, Judge.
JUDGE HANKINSON: Okay. Any -- so no issues --
MR. ZANGENEH: None.
JUDGE HANKINSON: -- on any of that?
Any issues on the list that the clerk is including with it?
MR. ZANGENEH: Not from Mr. Garcia.
MS. KAWASS: Not from Ms. Magbanua.
And Judge, Your Honor, of course with the CDs, it's, you know, we take them at face value.
JUDGE HANKINSON: Right.
MS. KAWASS: But labeled correctly. Everything's fine.
JUDGE HANKINSON: Yeah, I don't think there was anything particularly controversial on the list. All right. So that can be delivered.
Magbanua is not involved in this discussion so y'all are free to go if you wish.
Talk about a schedule for next week just in case we -- if we get a first-degree murder verdict as to Mr. Garcia. Need to discuss how we want to proceed. we do have a juror, Ms. Evans, who has an ultrasound scheduled for Monday at 11:00 who is -- 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. But I just mention that as to 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. I'm available whenever the Court wishes.
JUDGE HANKINSON: Mr. Zangeneh?
MR. ZANGENEH: Obviously, I have -- I understand Ms. Evans' situation. As the Court knows, me and Mr. Padilla have been, you know, living in Leon County for the past, almost, month. I'll leave it up to the Court, but I'd like to start on Monday. I mean, if they come back with a verdict, I want to strike while the iron's hot and get things done.
JUDGE HANKINSON: What if we started at 1:00 o'clock on Monday? How would that work for you?
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 one witness from an expert position, Judge, so...
JUDGE HANKINSON: How much does the State have?
MS. CAPPLEMAN: I'll say three witnesses, Judge.
JUDGE HANKINSON: How long of witnesses do you think we're talking about?
MS. CAPPLEMAN: I'd say three hours total.
JUDGE HANKINSON: So we probably could get the evidence done Monday afternoon. Oh, your witness is an expert witness? So they usually take longer. So how long are you thinking she'll take?
MR. ZANGENEH: Half hour.
JUDGE HANKINSON: Oh, it's not going to be lengthy. So it would be doable to get the evidence done Monday afternoon, and then we could figure out the jury instructions Monday evening and present it to the jury Tuesday morning?
MR. ZANGENEH: Yeah.
JUDGE HANKINSON: I mean, nothing ever goes exactly by plan, but that would be kind of a working hypothesis of how we proceed.
MS. CAPPLEMAN: That will be fine, Judge.
MR. ZANGENEH: Yes, Judge.
JUDGE HANKINSON: That works for y'all?
MR. ZANGENEH: Yes, Judge.
JUDGE HANKINSON: It would 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, some ask for statutory and then the catch-all; some want a list of different things. That is the only part that gets a little confusing.
MR. ZANGENEH: Could I get you an answer before 5:00 o'clock tomorrow?
JUDGE HANKINSON: Yeah. I tell you it'd be more helpful if you can get one before, say, 1:00 o'clock tomorrow so I had the afternoon to work on it so...
MR. ZANGENEH: That's fine, Judge.
JUDGE HANKINSON: I hoped to not work on it all weekend but, you know -- 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 --
MR. ZANGENEH: Yeah.
JUDGE HANKINSON: -- for your initial perusal.
MR. ZANGENEH: Please.
JUDGE HANKINSON: All right. who do you want us to send those to, Ms. Cappleman?
JUDGE HANKINSON: Okay. All right. Anything else we need to discuss?
MR. ZANGENEH: NO.
MS. CAPPLEMAN: One thing from the State, Judge. I did mark as 197 a Court exhibit, which is a disc containing the PowerPoint that I presented in closing if Your Honor wants to accept that item.
JUDGE HANKINSON: You want to make it part of the record?
MS. CAPPLEMAN: I'm told that I have to. I don't know --
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 we would do so.
MR. ZANGENEH: Just to make it part of the court record, Judge?
JUDGE HANKINSON: Right.
MR. ZANGENEH: That's fine.
MR. DECOSTE: I believe that's correct.
JUDGE HANKINSON: You want that done?
MR. DECOSTE: I believe it should be, yeah.
JUDGE HANKINSON: what's that?
MR. DECOSTE: TI believe, yeah, it should be part of the record.
JUDGE HANKINSON: Okay. we'll make it part of the record then, Court exhibit.
All right. Anything else?
(Court Exhibit No. 197 received in evidence.)
MS. CAPPLEMAN: Nothing from the State.
MR. ZANGENEH: No, Judge.
JUDGE HANKINSON: All right. And you're prepared to deliver the evidence to the jury?
COURT CLERK: Yes.
JUDGE HANKINSON: You may do so, Madam Clerk. And we do have a court administration person present that, if they need technical assistance, we'll provide them technical assistance.
All right. we'll be in recess until we hear further from the jury.
(A recess in the proceeding.)
JUDGE HANKINSON: we had two questions from the jury. I had asked that copies be given to the attorneys. Has everybody been given a copy of the questions?
MS. CAPPLEMAN: Yes, Sir.
MS. KAWASS: Yes, Your Honor.
MR. ZANGENEH: Yes, Judge.
JUDGE HANKINSON: The questions, for the record, is, one circled: If person B accompanies person A with the shared intent to commit a robbery together, and person A commits a premeditated murder during the robbery but person B did not know a murder was intended, is person B a principal to premeditated murder?
The second question is: Does principal apply to conspiracy?
I've written a proposed answer. I1'11 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. Two, no, the law of principals does not apply to the conspiracy charge in Count II.
I'll hear from anyone who 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 principal is and I think what was covered, I think, in jury selection, to some degree, to explain principal. So the State would be requesting the answer to that question is yes. And the -- and I don't believe there's anything that indicates that -- I'm not aware of the law that says principal doesn't apply to conspiracy.
JUDGE HANKINSON: well, you'll have to show me some law that says it does, because it doesn't make sense to me that principal would apply to conspiracy, which is simply an agreement for a criminal act. I don't know how you could have a principal. I think it would just be a legal myth.
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, and I would cite Lawes versus State, which is --
JUDGE HANKINSON: I didn't quite catch your one -- are you objecting to what I said on one?
MS. KAWASS: No. I -- no objection, Your Honor. Sorry. No objection. And I agree with the Court as to two, and I researched the issue and you are correct that principal does not apply to conspiracy.
JUDGE HANKINSON: I'll overrule the State's objection. I'll provide this answer to the jury. we'll wait to hear further from the jury.
(A recess in the proceeding.)
JUDGE HANKINSON: As I was intending to get everybody gathered up, we got a question in the meantime. For the record: Is Corbitt's cell tower mapping available for our consideration?
It's my understanding that was presented as a demonstrative aid and is not in evidence. Is that correct, Ms. Norris or Ms. Cappleman?
MS. NORRIS: Judge, there are four exhibits that were summaries from Sergeant Corbitt that were introduced in evidence. There were -- I don't know the exact exhibit numbers.
Madam Clerk?
COURT CLERK: A through D, I believe?
MS. NORRIS: No, not the Court exhibits. There were four maps that were introduced in evidence as summaries. And then you are correct, the other demonstrative aids that were used during the course of his testimony were only entered as Court exhibits. But I --
JUDGE HANKINSON: What do you think the numbers were of the ones that are in evidence?
MS. NORRIS: May I approach the clerk? 1'11 be able to identify them pretty easily.
COURT CLERK: Is it 93 through 96?
MS. NORRIS: Yes, 93 through 96.
MR. ZANGENEH: Yes.
JUDGE HANKINSON: And are those actually maps?
MR. ZANGENEH: Yes, Judge. Those are mapping the two trips, the June and July trip.
JUDGE HANKINSON: Did the defense put any maps in? Did defense put any maps in? Any telephone maps in for the defense?
MR. ZANGENEH: Oh, no, Judge.
MR. DECOSTE: No, Your Honor.
(A pause in the proceeding.)
JUDGE HANKINSON: I would propose simply telling them, 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: Your Honor, my only suggestion would be to remind them that they can consider the visual demonstratives 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.
MS. NORRIS: So they did view mapping during the trial where he was demonstrating the location of handsets.
JUDGE HANKINSON: Right. I'm not going to comment on anybody's testimony if that's what you're asking me to do.
MS. NORRIS: I'm just --
JUDGE HANKINSON: 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 that he was describing.
JUDGE HANKINSON: All right. I'll add a sentence: You will simply have to collectively remember his testimony as to any other cell tower mapping information. Anybody have a problem with that?
MS. NORRIS: No, Judge.
MR. ZANGENEH: If the Court would be kind enough to read to me back in its entirety?
JUDGE HANKINSON: what I said?
MR. ZANGENEH: Yes, Your Honor.
JUDGE HANKINSON: Dear Jurors, State Exhibits 93 thru 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.
MR. ZANGENEH: That's fine, Judge.
MR. DECOSTE: No objection.
JUDGE HANKINSON: So I'd 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, a separated floor. Deputies will be with them through the night. They will be brought back to the -- they will be fed there as a group in a separate area, and then they'll be brought back to the courthouse by van together. That's the plan.
I guess, does anybody feel like we need to bring them in to send them off for the night?
MR. ZANGENEH: NO, Judge, not Mr. Garcia.
MR. DECOSTE: NO, Your Honor.
MS. NORRIS: No.
JUDGE HANKINSON: How about in the morning? It would save y'all having to be here exactly when they get here if we just have them start deliberations on their own. They're all going to be together so it's not a situation where they're going to be separated. But we can have them wait to start deliberations by being brought into the courtroom first if you desire.
MR. ZANGENEH: No, Judge. They can just start deliberating back. That's Garcia's position.
MR. DECOSTE: Same.
MS. NORRIS: That's fine, Judge.
JUDGE HANKINSON: Okay. So you heard my instructions to them earlier. I think my instructions were sufficient. The only thing I want to wait, if y'all will 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 that y'all will know what time they wish to start. You don't have to be here. Of course, be available/on call, as needed.
So would you check with them what time they would like to start?
(A pause in the proceeding.)
JUDGE HANKINSON: Mr. Zangeneh, did you get the e-mail from my judicial assistant?
MR. ZANGENEH: I did, Your Honor.
JUDGE HANKINSON: Did the State get the e-mail with the jury instructions for the next --
MR. ZANGENEH: I did. I did. I'll have something to you by 1:00 o'clock tomorrow.
JUDGE HANKINSON: Okay. And the State received it?
MR. EVANS: Yes, sir. I guess the only question, Your Honor, was the preliminary instructions, you're just good with the standard? Because I think all we received was the final instructions.
JUDGE HANKINSON: Right. I have some. I'm not going -- it's not standard but -- well, yeah, there is a standard instruction. Yeah, I have that. I'm not going to put it in writing.
MR. EVANS: I was just making sure we were -- that was -- only final instructions.
JUDGE HANKINSON: JI pulled up the standard preliminary instruction. I have to fine-tune that a little bit.
BAILIFF: They said they'd like that, and they'll come back at 8:45 in the morning like they've been doing.
JUDGE HANKINSON: Okay. So if y'all would be available on call by 8:45 tomorrow.
Anything else from anybody?
MR. ZANGENEH: Not from Mr. Garcia.
JUDGE HANKINSON: All right. we'll see y'all when we hear from the jury tomorrow.
(The proceedings adjourned at 8:28 p.m. Continued in Volume XIII.)