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‘Unconstitutional, unfair, unsafe’: Attorneys for Katherine Magbanua claim she was COVID positive prior to August court hearing

FILE PHOTO: The hearing lasted just over an hour, with discussions on jury selection, discovery...
FILE PHOTO: The hearing lasted just over an hour, with discussions on jury selection, discovery and evidence procedures and deadlines, and the date of the trial. (Aug. 25, 2021)(WCTV)
Published: Sep. 13, 2021 at 2:54 PM EDT
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TALLAHASSEE, Fla. (WCTV) - Katherine Magbanua’s attorneys are asking a judge to delay her October trial, saying they have “zero confidence that the court system can ensure safety during the retrial.”

In a motion for continuance filed Monday, September 13, defense attorneys Chris DeCoste and Tara Kawass said they are both immunocompromised cancer survivors and were exposed to COVID while attending a court hearing with Magbanua in August.

“Prior to the day of Court, Ms. Magbanua tested positive for COVID-19. The morning of the Court the Leon County Sheriff’s Office (LCSO) did a rapid test, which are known to be inaccurate. The rapid test came back negative,” the motion said. “She was transported to Court directly from the area within the unit housing COVID-19 positive inmates without being allowed to shower or change clothes. She was brought into the courtroom and seated at defense counsel table. After Court, LCSO did a molecular test, which is the gold standard. Ms. Magbanua was still COVID-19 positive.”

An LCSO Spokesman says inmates are tested for COVID-19 on the day of their court appearance.

LCSO says it notifies the courts if any of the inmates scheduled to be transported to the courthouse have been exposed to see how to proceed.

We are reaching out to court administrators to try to find out more about those protocols.

The request to delay the trial comes just days after Magbanua’s defense team asked a judge to disqualify the State Attorney’s Office from prosecuting the case. It accuses prosecutors of “intentionally presenting misleading evidence” and “substantial misconduct.”

Magbanua is scheduled to be retried on Oct. 4 after her first trial ended in a hung jury. She’s accused of conspiracy and murder in the 2014 murder of FSU professor Dan Markel. Two other co-defendants — Sigfredo Garcia and Luis Rivera — are already serving time in prison for the crime.

A motion filed Friday, Sept. 10, by Magbanua’s attorneys claims two demonstrative aids at her trial — one detailing her phone calls on June 2 and the other detailing her bank and employment records after the murder — were introduced at the last minute over their objections and were inaccurate.

The defense team points to a demonstrative aid showing Magbanua’s phone records on June 2, 2014, and contend prosecutors “intentionally excluded” two phone calls between Magbanua and Garcia that night in an attempt to suggest the two were together as they rented a car for an initial trip to Tallahassee.

The defense team also points to a demonstrative aid showing Magbanua’s employment records and bank account activity after the murder as prosecutors attempted to show an unexplained influx of cash.

Magbanua’s attorneys say they discovered the discrepancies after deposing witness Mary Hull for the upcoming retrial.

“On the day prior, the State provided undersigned counsel with “new” reports from Ms. Hull, as well as an “updated” summary chart the State intended to use at the retrial,” defense attorneys wrote. “It became apparent to undersigned counsel that the updated chart was different from the one presented to the jury during the first trial. During the deposition, Ms. Hull confirmed that the exhibits used at trial were incorrect in that they did not accurately track the income received by Ms. Magbanua.”

Magbanua’s defense team says it then started backtracking and comparing the exhibit sent to them via email by the State Attorney’s Office with the one actually shown to the jury.

“The exhibit emailed to undersigned counsel on September 27, 2019, and the one utilized at trial were not the same,” defense attorneys contend. “The actions of the State Attorney’s Office here have called the integrity of the entire case into question.

State Attorney Jack Campbell called the motion to disqualify his office “unfortunate,” saying it’s “an attempt by the defense to discredit us.”

Campbell also defended his prosecution of the case.

“I think what you have here is people using various tactics...to influence our ability to seat a jury,” Campbell said.

Court records do not yet show a formal response from the state or a court date for a judge to consider the motions.

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