'Epic disaster': Donna Adelson's trial went off the rails. Here's what's coming next.

Donna Adelson’s trial on charges she helped mastermind the demise of her former son-in-law, Dan Markel, imploded in part from assumptions all sides were making about her attorney Dan Rashbaum’s attempts to deal with conflicts stemming from his decision to represent her even after handling her son’s case.

That’s what legal observers said after Rashbaum — in a stunning turn of events — withdrew as Donna Adelson’s lawyer on Tuesday, the first day of jury selection in her murder trial.

The move prompted Leon Circuit Judge Stephen Everett, who had cautioned Adelson multiple times about potential conflicts involving using the same lawyer who represented her son, Charlie Adelson, to declare a continuance.

Now, her trial will be rescheduled for perhaps later this year or early 2025. Rashbaum’s co-counsel, Robert “Alex” Morris of Tallahassee, is taking over the defense.

Josephine “Jo” Potuto, a professor of constitutional law emeritus at the University of Nebraska who has watched the case closely, called the trial’s unexpected unraveling an “epic disaster.” But she said it was entirely avoidable.

“The only certain way it could have been avoided," she said, "was for Dan never to have taken on the representation of Donna. She added: "I think everyone assumed that the defense had done an adequate job of vetting all of this with Charlie."

The continuance was more than a mere inconvenience. Several hundred jurors who had reported Tuesday were sent home. Convicted co-conspirators moved to Leon County Jail for the trial now must be transported back to prisons as far away as far away as South Dakota. Dozens of witnesses who had been lined up to testify saw their plans upended.

Everett noted that the state, if it’s successful, can seek to have Donna Adelson repay the costs of the continuance.

For months, Everett had spoken about the possibility of conflicts that could arise from Rashbaum’s representation of both her and her son. More than once he had her raise her right hand during pre-trial court hearings in which she voluntarily waived them away.

Charlie Adelson, who’s serving a life sentence in Markel’s murder, also had waived any conflicts back in December, Dan Rashbaum said in court Tuesday. But that changed after he was subpoenaed to testify by the state and transferred from his South Dakota prison cell to the Leon County Detention Facility on Sept. 13.

Two days later, Charlie Adelson met with his new appellate lawyer, Michael Ufferman of Tallahassee, at the jail. Two days after that, Ufferman filed notice that his client didn’t waive conflicts involving his protected communications with Rashbaum. He also asserted that Adelson should not be questioned by either Rashbaum or any member of the defense team during cross-examination.

After the issue blew up in court Tuesday morning, Rashbaum told Everett he met with Ufferman, who was in the courtroom, but couldn’t get a new waiver.

Tim Jansen, a prominent Tallahassee criminal defense lawyer, said Charlie Adelson didn’t want to hurt his chances on appeal or get in the way of a possible motion involving ineffective lawyering by Rashbaum, which can be filed only after all other appeals have been exhausted.

“I think what happened is his appellate lawyer had gone over his appellate issues and probably talked to him about his chances on appeal,” Jansen said. “And now ... they are at odds with the defense. And he doesn’t want to go on the witness stand and testify.”

'A dilemma of divided loyalty'

Potuto, the law professor, said Rashbaum shouldn’t have taken the case because any waivers he got from Charlie Adelson could have been revoked at any time, including in the middle of trial.

She added that it didn’t appear the defense did a good enough job of advising Charlie Adelson what he was risking in his appeal if he took the stand in his mother’s trial.

“In general, when he gets on the stand and has waived any conflict, any privilege, what is open on cross-examination is anything the state asked him on direct examination,” Potuto said. “And that may implicate his case, the trial and the conviction. He may say something there that has a direct impact on what the appellate lawyers want to be able to use in the appeal.”

Jansen, who predicted trouble after Ufferman's notice was filed, said he believes Rashbaum “completely mishandled” the situation and allowed himself to get too close to the Adelsons. He added, however, that both prosecutors and the court could have taken a stronger position on the matter.

“What I think happened was that (Rashbaum) assumed that he had a relationship with Charlie and he knew, because it was his mother being defended, that he would waive,” Jansen said. “But I think he got new lawyers, a new strategy and now, he’s not waiving.”

Rashbaum, a Miami attorney and former federal prosecutor, said he couldn’t discuss the situation.

“I have no comment," Rashbaum said, "other than Mrs. Adelson is in very good hands with her new counsel."

Ufferman could not be reached for comment. In his court filing, he cited a 3rd District Court of Appeal case from 1994 that touched on a similar issue.

“An attorney’s previous relationship with a client who has become a witness for the government and plans to testify against the attorney’s current client presents a dilemma of divided loyalty,” the court wrote.

'We might see a whole different trial'

Donna Adelson is accused of working with her son, Charlie, to orchestrate the July 18, 2014 hit on Markel, who was shot at point-blank range in his Trescott Drive home. It happened in the wake of Markel’s acrimonious divorce from Wendi Adelson, Donna’s daughter and Charlie’s sister, and an ongoing custody battle over their two sons.

Last year, Rashbaum and Charlie Adelson tried to convince jurors in his trial that his family had been the victims of double-extortion, that the real killers shook him down for $100,000-plus dollars and that an undercover FBI agent posing as a gang member tried to squeeze $5,000 from his mom.

The defense appeared prepared to present a similar defense for Donna Adelson. However, it’s possible that will change given the switch in her lawyers.

Prosecutors signaled before the trial that they intended to introduce evidence that cuts against extortion claims. That includes texts from 2016, after Charlie and Donna Adelson said they were extorted, in which Charlie Adelson discussed a drug dealer who had sold cocaine to the hit men and wondered aloud whether he did the murder.

“That exchange may be less significant if there’s a different defense strategy and a different theory from the defense team this time around,” Potuto said. “They have a chance to re-forge. And you know, that theory, that defense, didn’t work for Charlie.”

Morris, who took questions from reporters after court on Tuesday, said the change in Donna Adelson’s counsel would open up opportunities involving negotiations with the state.

“I think it opens up pathways to exploring different defenses that may not have been previously available,” Morris said.

Jansen said Morris may not have been “keen” with the proposed defense going into jury selection but didn’t have much power to change it because he wasn’t lead counsel.

“If you’re in the back of the boat, you’re not the captain," he said. “You’re just going for a ride. Now Alex is going to be the lead, going to be the captain. So we might see a whole different trial.”

Contact Jeff Burlew at jburlew@tallahassee.com or 850-599-2180.

This article originally appeared on Tallahassee Democrat: Dan Markel murder: What's next for Donna Adelson murder trial?