Judge denies Magbanua's request for separate trial in Markel murder

Published: Sep. 19, 2019 at 12:42 PM EDT
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By: Julie Montanaro | WCTV Eyewitness News

September 20, 2019

TALLAHASSEE, Fla. (WCTV) — A judge has denied Katherine Magbanua's request for a separate trial in the 2014 murder of FSU law professor Dan Markel.

Magbanua said to the judge there was evidence that was admissible in her case that was not in Sigfredo Garcia’s and vice versa.

The two are scheduled to go to trial Monday for the Markel's 2014 murder.

Magbanua’s attorneys are also asking that the entire Adelson family be barred from testifying including Wendi Adelson who they say refused to answer any defense questions during a recent deposition.

Prosecutors say they did issue subpoenas to Donna, Harvey and Charlie Adelson to get employment records for Ms. Magbanua. Georgia Cappleman said she does not intend to call them to the stand, but does intend to call Wendi Adelson.

The judge ruled he will not bar Wendi Adelson from testifying, but says she cannot blanketly plead the fifth to defense questions on cross examination.

The judge also delayed a decision on the testimony of a gang expert until he can answer some questions before trial testimony begins.

Defense attorneys also asked a judge to bar a video recording of Magbanua and Adelson at a Miami restaurant saying the bulk of her audio is inaudible.

The state contends there are portions of the recording are audible and relevant.

The judge says he wants to hear the recording before determining which portions are admissible.

Copyright 2019 WCTV. All rights reserved.

By: Julie Montanaro | WCTV Eyewitness News

September 19, 2019

TALLAHASSEE, Fla (WCTV) -- Just days before the Dan Markel murder case goes to trial, one of the defendants is now asking for her case to be tried separately.

Jury selection is scheduled to start Monday for both Sigfredo Garcia and Katherine Magbanua.

Magbanua's attorneys just filed a motion asking for a separate trial at a later date.

Her attorneys contend there is evidence that is admissible in Magbanua's case, that is not admissible against Garcia and is "overly prejudicial to him." According to the motion, that includes Garcia's previous criminal history and statements he made to fellow jail inmates that "tend to implicate Ms. Magbanua."

Garcia is facing the death penalty in this case. Magbanua is not.

Magbanua's attorneys argue in the motion that "subjecting her to trial with a death-qualified jury" would violate her due process rights.

They claim it would unfairly exclude African-Americans from the jury. "Research has consistently shown that African-Americans are more likely to oppose the death penalty than white persons," Magbanua's attorneys argued in the motion, citing a series of studies.

The judge could rule on the request at a hearing on Friday.

Magbanua and Garcia are accused of killing FSU law professor Dan Markel at his home five years ago.

The motion to sever is one of a bevy of last minute motions filed in the case this week.

Defense attorneys are renewing efforts to keep Dan Markel's ex-wife Wendi Adelson off the witness stand. They argue that Adelson intends to answer questions from the state, but plead the fifth and refuse to answer defense questions during cross-examination.

They are also trying to keep any documents filed by Dan Markel during the couple's divorce and custody proceedings out of court, calling them "hearsay" and "inadmissible."

Magbanua's attorneys are also trying to stop prosecutors from mentioning a series of recordings and wire taps in front of the jury.

One of them was a video recording of Magbanua and Charlie Adelson at a Miami restaurant called the Dolce Vita. Charlie Adelson - Wendi's brother - used to date Magbanua. The FBI along with TPD recorded a conversation between the two in April 2016. Magbanua's attorneys claim the majority of the recording is "unintelligible" and claim the inaudible portions "are so substantial to deprive the remainder of relevance."

They also want to keep the jury from hearing a series of wire taps on Magbanua's and Charlie Adelson's cell phones. Magbanua's attorneys contend those wire taps in May 2016 took place years after the alleged conspiracy and are not admissible in court.

Prosecutors are also filing several last minute motions, including those designed to buttress the credibility of Luis Rivera. Rivera has already pleaded guilty in Markel's murder and is planning to testify against Garcia and Magbanua at trial.

Prosecutors are asking the judge to bar defense attorneys from mentioning Rivera's affiliation with the Latin Kings gang. "Admission of Mr. Rivera's membership with the Latin Kings will only serve as inadmissible character evidence to taint the jury's perception of Mr. Rivera's testimony," the state argued in its motion.

The state is also seeking to stop one of the defense's expert witnesses from testifying. Dr. Jesus De La Cruz is a gang expert who prosecutors contend is going to testify "it is more likely Rivera committed the murder than Mr. Garcia." The state argues his conclusions are "not scientific" but are "pure opinion and are not based upon sufficient facts or data."

A hearing to consider the pre-trial motions is set for Friday morning at the Leon County Courthouse.

Copyright 2019 WCTV. All rights reserved.