Beyond an unreasonable doubt

Pictured: Wendi Adelson. Probably doesn’t ever eat donuts, but as Remo Gaggi might put it, why take a chance?

More than nine years after the murder of law professor and legal blogger Dan Markel, a Florida jury has convicted the brother of Markel’s ex-wife Wendi Adelson of orchestrating the murder:

According to prosecutors, Mr. Adelson arranged and paid for two men, Sigfredo Garcia and Luis Rivera, a former leader of the North Miami Latin Kings gang, to drive to Tallahassee from Miami and kill Mr. Markel so that his ex-wife, Wendi Adelson, could relocate to South Florida with the couple’s two young sons. A judge had denied her relocation petition after the divorce.

The murder was arranged, prosecutors said, through Katherine Magbanua, Mr. Adelson’s girlfriend at the time, who had two children with Mr. Garcia.

This series of events had become extremely obvious within just a few weeks of Markel’s murder. Why it took more than nine years to charge and try Charlie Adelson, when there was always an Everest-sized mountain of evidence against him, is no doubt an interesting story in its own right.

Part of the reason is, that if you’re rich and have a lot of cultural capital, a lot of prosecutors take the concept of “beyond a reasonable doubt” very literally, since they are obsessed with not losing cases, and you can’t lose cases that you don’t bring. Which brings us to Wendi Adelson.

David Lat, who has followed this case far more closely than I have, speculates on a possible future prosecution of Markel’s ex-wife and the mother of his children:

 I don’t expect Wendi to be indicted anytime soon. The standard for bringing a criminal case is whether guilt can be proved beyond a reasonable doubt, and State Attorney Jack Campbell applies it strictly: despite an incredible amount of evidence against Charlie, Campbell didn’t arrest him until April 2022, almost eight years after the murder . . .

Please don’t view this as an endorsement of Wendi, who strikes me as a sociopath (one of the nicer things I’d say about her), but the evidence against her is not as compelling as the evidence against her brother and mother.  . .

Yes, she texted with Dan to confirm that he would be home rather than out of town on the day of the murder. Yes, her ex-boyfriend Jeffrey LaCasse believes she might have tried to frame him for the killing. Yes, she suspiciously drove by Dan’s house shortly after the shooting, perhaps because she knew it was happening that morning and wanted to confirm it had been done. And yes, one can certainly make the “how could she not know” argument: “If her mother and brother were going to order a hit on her ex-husband, wouldn’t they have let her in on it?”

But again, does this prove her guilt beyond a reasonable doubt? Wendi has possible responses. For example, she could argue that texting with Dan about his schedule and whereabouts was just something they had to do as divorced parents with joint custody of two kids. And she (or her lawyer) could point to evidence showing how, in the Adelsons’ pathological family dynamic, Donna and Charlie constantly infantilized and sheltered her, so it’s possible they would have done something terrible for her benefit without telling her (so as not to expose her to criminal liability).

Here’s a general principle that this case illustrates with special force for me personally: “Beyond a reasonable doubt” is a standard of proof for establishing guilt in a criminal trial. It is very much NOT the standard of proof that ought to be used when making decisions in other practical contexts, such as, oh, I don’t know . . . hiring Wendi Adelson to be your colleague on the University of Colorado Law faculty.

About five years ago, some of my colleagues thought it was a fine idea to make Wendi Adelson one of three finalists for a job teaching legal writing on the faculty here (this is the same job she had at Florida State when both she and Markel were on the law faculty there).

I very demurely and politely objected to this development, pointing out that having someone as a colleague who was willing to murder the father of her own children over a custody dispute was, in my humble view, always open to correction, perhaps suboptimal.

The initial reply I received was, wait for it . . . She hadn’t been convicted of anything.

Well yes, but what if you think there’s, say, a 90% probability that she did murder a — to be fair former — law school colleague? Is that enough confidence to convict her of that murder? No of course it’s not, because beyond a reasonable doubt does or should involve a much higher standard of statistical confidence than that (Just exactly how high is one of those things that is kept intentionally mysterious by the priests of the cult of law). But is it a high enough degree of confidence not to give her a job that a lot of other extremely well qualified people who don’t seem prone to murdering their colleagues are also seeking?

Hmmm, let’s think that one over for awhile.

This issue comes up constantly. For example, when people were arguing about how good the evidence was for the claim that Brett Kavanaugh had committed sex assault, it was almost impossible to get a lot fo those people to understand that the standard of proof in a job interview is or should be different than the standard of proof in a criminal trial.

Anyway, based on my reading of the evidence, it’s overwhelmingly probable that Wendi Adelson was, along with her brother and her mother, part of the plot to murder Dan Markel. Is the level of proof sufficient to convict her? That I don’t know, but it’s definitely high enough that I’m not going to accuse her of taking all the Voodoo donuts out of that box I left in the faculty lounge.*

*BTW we just got a Voodoo Donut place in Boulder, and I’m sorry to report that I found it to be extremely over-rated. Lamar’s, for instance, is far superior.