Legal analysis ahead of Donna Adelson’s trial

The murder trial of Donna Adelson is scheduled to begin with jury selection on Tuesday, September 17, at the Leon County Courthouse in Tallahassee.

The trial comes more than ten years after the brutal murder of FSU law professor Dan Markel and ten months after her arrest at Miami International Airport as she fled the United States for Vietnam, a country with which the United States has no extradition treaty.

This is the fourth criminal trial of the South Florida conspirators who allegedly planned or participated in the murder of Professor Markel in his driveway.

The main actors of the process

The evidence from the previous trials concerned the active participants who had taken identifiable steps in planning, organizing, executing and paying for the execution-murder.

Sigfredo Garcia was the suspected gunman who killed Markel.
Luis Rivera was the co-conspirator who conducted the surveillance and helped Garcia find, identify, and follow Professor Markel to his residence so Garcia could kill Markel. Rivera also drove the getaway car as the killers fled back to South Florida.
Katherine Magbanua, the mother of Garcia's children, acted as a middleman in the murder plot between the killers and Charlie Adelson. She also provided Garcia and Rivera with money and photos of Markel. She was also paid by Adelson to keep quiet about the crime.
Charlie Adelson instructed Magbanua, his girlfriend, to kill his ex-brother-in-law so his sister Wendi and her children could move to South Florida. Charlie gave Magbanua money so she could pay the hitmen. He also convinced Magbanua to stay quiet when police began targeting the perpetrators.

Trying it with Donna Adelson will be different

The evidence accusing Donna of murder is less direct and does not implicate any of the other active participants other than Charlie Adelson. In fact, there will be no witness in court who would directly accuse Donna of murdering Professor Markel.

▶Read the arrest warrant against Donna Adelson: Talk of escape, suicide and “creating order”

In this case, the State must gather evidence that proves her knowledge and involvement in the murder. The State believes this case is important because the evidence suggests that Donna was the instigator of this crime and that she believed she could protect herself from prosecution by not directly participating in the crime.

The state had argued in previous proceedings that Donna Adelson had a significant motive for the murder, but that she had used Charlie to shield herself from the other active co-conspirators.

The state therefore has no direct evidence of her active involvement in the planning and execution of the murder.

Therefore, the case against Donna is a circumstantial trial. Does the state have enough evidence to prove her guilt beyond a reasonable doubt? Was Donna the impetus and driving force that led her son Charlie and others to commit this heinous crime?

Under Florida and federal law, circumstantial evidence is sufficient to support a conviction in criminal trials. In fact, the jury is instructed that the law makes no distinction between direct and/or circumstantial evidence in proving a defendant's guilt.

Coincidentally, cases involving circumstantial evidence can be much stronger than cases involving direct evidence, namely eyewitness identification. The State's case will rely on the totality of the evidence rather than on a single eyewitness, photograph, document or fingerprint.

This would make the State's argument more complex and take longer to present.

What will happen in the process?

The defense will certainly take a different approach than in the trial against Charlie Adelson.

Instead of having an out-of-town jury consultant select the jury and then leave town, the defense hired a local criminal defense attorney, Alex Morris, who is familiar with the community, to select the jury.

The benefit of having the attorney select the jury is that they build a bond and try to establish a relationship of trust early in the trial. Unlike Charlie's trial, Morris will also deliver the opening statement, according to sources. This will give the defense some momentum early in the trial, which was not the case in Charlie Adelson's trial.

The prosecution must educate the jury about circumstantial evidence from jury selection and throughout the trial. The prosecution must convince the jury at every opportunity that the case against Donna is strong and legally admissible, even if it is based entirely on circumstantial evidence.

The State will highlight their emails and text messages between Donna and Wendi regarding the divorce and custody battle to establish motive. Wendi's testimony against her mother will form the basis of the State's evidence of motive for Donna's involvement in the crime.

The state has ample circumstantial evidence against Donna: recorded phone calls, text messages, encrypted conversations with Charlie, the bump, her paying Magbanua not to work at the family clinic, her text messages and emails to Wendi, her failure to inform authorities about the so-called double extortion scheme Charlie hatched at his trial, and her flight to avoid prosecution.

The state has enough evidence to build a compelling case against Donna, even if it is based only on circumstantial evidence. In addition, the state has Donna's flight from prosecution. They will receive a jury instruction indicating consciousness of guilt, which is devastating to the defense.

Will Charlie and Donna Adelson testify?

It is expected that Charlie will testify for the defense that he was blackmailed and that his mother was simply protecting him from the killers/blackmailers. This so-called double blackmail theory was clearly rejected by the jury, who found him guilty on all counts after three hours of deliberations.

Nevertheless, the defense has put Charlie on their witness list.

Donna is expected to feign ignorance or motherly love to protect her son from her suspicious actions and conversations. Charlie's testimony is expected to be consistent with the canned testimony he gave at his own unsuccessful trial.

Will Charlie's testimony be enough to prevent Donna from having to take the witness stand?

Many experts and legal professionals believe that Donna must testify. However, this is not the case. There are dangers involved in the testimony of a defendant, especially when this case is entrusted with experienced and smart prosecutors.

Prosecutors love it when defendants take the stand. Not only can they prove that the defendant is lying, but they can also introduce certain evidence that would otherwise be inadmissible. And finally, by testifying at trial, the defendant forfeits an appellate court's claim of insufficient evidence.

This claim is invalidated because appellate courts allow convictions based solely on the credibility of the defendant when a claim is made based on insufficient evidence. Most experienced criminal defense attorneys prepare their clients to testify, but wait until the end to make this decision.

Ultimately, the decision is up to the defendant. In this case, the defense can wait to hear Charlie's testimony and then decide whether Donna needs to take the stand.

On the other hand, Donna must justify her flight to avoid prosecution. This is a highly incriminating piece of evidence in the state's arsenal. Donna may have no choice but to take the stand, declare her innocence, and declare her one-way ticket to a non-extradition country.

She had ten months to think about this decision. We will know for sure when the prosecution has finished its evidence.

Next on the calendar is the selection of the jury.

Tim Jansen, a partner at Jansen & Davis, PA, is a well-known and nationally recognized criminal defense attorney in Tallahassee and a former Assistant U.S. Attorney in Tallahassee and Tampa. He has represented numerous high-profile clients for years and regularly provides readers of the Tallahassee Democrat with legal analysis and insight into the Donna Adelson trial. He also provides analysis for ABC Newslive and appears regularly on Court TV, Nancy Grace and Law and Crime.