Filing # 154278343 E-Filed 07/28/2022 04:17:40 PM. IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA Case No. 16-CF-03036 STATE OF FLORIDA, Plaintiff, CHARLES ADELSON, et al., Defendants, DEFENDANT CHARLES ADELSON’S MOTION FOR PRETRIAL RELEASE AND REQUEST FOR ARTHUR HEARING Under Article I, Section 14 of the Florida Constitution and Florida Rule of Criminal Procedure 3.131(a), Defendant Charles Adelson, a lifelong Florida resident with no criminal history or history of violence, respectfully moves the Court for pretrial release on reasonable conditions. Mr. Adelson further requests, under State v. Arthur, 390 So. 24 717 (Fla. 1980), that the Court schedule this motion for an evidentiary hearing as soon as practicable, PRELIMINARY STATEMENT On April 20, 2022, the grand jury returned an indictment against Mr. Adelson, charging him with first-degree murder, conspiracy to commit murder, and solicitation to commit murder in connection with the July 2014 death of his former brother-in-law, Professor Dan Markel, Mr. Adelson was arrested the next day, April 21, 2022, at his home, and was fully cooperative in his arrest. The grand jury returned this indictment almost six years after the authorities first signaled to Mr. Adelson that he was under investigation for the very crimes alleged in the indictment. In September 2016, the Tallahassee Police Department (“TPD") released, to the media, a draft probable cause affidavit (the “Draft Affidavit”), which purported to establish probable causeagainst Mr. Adelson, and against persons he is alleged to have conspired with (Magbanua, Garcia, and Rivera), for the murder of Professor Markel.' The 24-page Draft Affidavit catalogued the circumstances that investigators believed evidenced Mr, Adelson’s involvement and guilt—from the “flurry” of communications between Mr. Adelson and Magbanua, and then among Magbanua, Garcia, and Rivera, both shortly before and shortly afier Professor Markel’s death; to the contents of intercepted phone calls and other intercepted conversations, precipitated by an undercover agent's “bump” of Mr. Adelson’s mother in April 2016; to evidence suggesting that Magbanua, Garcia, and Rivera received financial compensation for orchestrating Professor Markel’s murder. But that Draft Affidavit—for all of its supposed rigor and detail—was never approved by the State Attomey’s Office as to Mr. Adelson In fact, when TPD released the Draft Affidavit in 2016, then-State Attomey Willie Mexgs explained that his office had not approved Mr. Adelson’s arrest because the affidavit amounted to nothing more than “speculation” about Mr. Adelson’s alleged role in the conspiracy. As the Tallahassee Democrat reported on September 8, 2016 regarding Mr. Meggs’s reasoning for not approving charges against Mr. Adelson: My opinion after reading those documents is there is no probable cause here to make an arrest,’ Meggs said. ‘We kind of believe they were involved according to the police. But what we believe and what we think doesn’t count. What evidence do we have? “When you read this stuff, you say these people had him killed. 7 don't read it like that,” he continued. ‘How do we prove this? How do we prove what this officer believes, or thinks or suspects? What witnesses do we have for that purpose?® " See Karl Etters, Documents detail potential links to Markel ’s in-laws, TALLAHASSEE DEMOCRAT, Sept, 8, 2016, https: //tinyurl com/ve8n48ud See id. 3 Jd. (emphasis added).Mr. Megas believed so strongly that the authorities lacked a legal basis for Mr, Adelson’s arrest that he warned that, if TPD proceeded to arrest without a warrant, TPD should “get ready for your civil suit from whoever they have arrested without probable cause.”* So, what has changed since 2016? In the past six years, the State has prosecuted and secured convictions against Garcia, Rivera, and Magbanua, none of whom has directly implicated Mr. Adelson in the conspiracy to murder Professor Markel. As for Mr. Adelson’s recent arrest, nearly six years after Mr. Meggs publicly declared that suspicions about Mr. Adelson’s involvement were just “speculation?” According to the current State Attorney, the “new” evidence on which Mr. Adelson’s arrest is based is an “enhanced” recording of an April 20, 2016 conversation between ‘Mr. Adelson and Magbanua at the Dolce Vita restaurant in Miami, Florida (the “Dolce Recording”). “That's the new evidence,” explained the State Attorney, shortly after Mr. Adelson’s arrest.’ But far from being a “new” item of evidence, the Dolce Recording was a centerpiece of the authorities’ misguided efforts to arrest Mr. Adelson back in 2016. Indeed, despite the State’s claims that new “enhancements” only recently allowed the authorities to discern the contents of the Dolce Recording, that recording is described, transcribed, and analyzed in detail in the Draft Affidavit—the very same affidavit that former State Attorney Meggs dismissed, outright, as mere “speculation” about Mr. Adelson’s involvement in Professor Markel’s murder.° * Karl Etters, Tensions flare in Markel case after unexpected document drop, TALLAMIASSEE DEMOCRAT, Sept. 9, 2016, https://tinyurl.com/SSmewyce, § Grace Pateras and Karl Etters, Charlie Adelson arrested, TALLAHASSEE DEMOCRAT, Apr. 21, 2022, https.//tinyurl_com/2p8cev89 (internal quotation marks omitted) © Counsel for Mr. Adelson have listened to the audio of the original Dolce Recording (produced in discovery before the trial of Mr. Adelson's co-defendants) and the audio of the enhanced Dolce Recording (released by the State contemporaneous with Mr. Adelson’s arrest in April 2022). The original and enhanced audio are materially the same 3And, perhaps more significantly, the enhanced Dolce Recording only helps to exonerate ‘Mr. Adelson, as Mr. Adelson repeatedly states during his conversation with Magbanua that he had absolutely no connection to, or involvement in, Professor Markel’s death. Mr. Adelson comments, for example, that the individual who accosted his mother on the street the day before the meeting at Dolce Vita should “go talk to the person who's involved; not fucking people who aren’t involved. And I'm not involved.” Transcript of Dolce Recording at p. 15. Mr. Adelson also remarks that “[i]f it’s a cop” who initiated the “bump” of his mother, “I'm happy because I've got nothing to hide.” Jd. at pp. 18, 21 To prevail at the Arshur hearing and for Mr. Adelson to be held without bail before trial, the State must satisfy the highest evidentiary standard known to the law—“proof evident, presumption great”—a standard even more burdensome than the proof-beyond-a-reasonable- doubt required for a conviction. This is an exceedingly high standard for the State to meet in any case in which it seeks to deprive a defendant of his constitutional right to pretrial release. But when—as here—the State's case is based exclusively on circumstantial evidence, a special rule applies: the State has the additional burden of “exclud{ing] every other hypotheses except that of auill,” As discussed in more detail below, despite the State’s long-running theory that Mr. Adelson financed the murder of Professor Markel, to date, the State has failed to produce a single witness or item of evidence directly establishing that Mr. Adelson paid Magbanua, Garcia, or Rivera to facilitate, orchestrate, or carry out the murder—or that Mr. Adelson was involved in any way. The Dolce Recording is emblematic of the State's inability to meet its burden here, as the recording, on its face, suggests an altemative theory: not that Mr. Adelson is guilty, but that he had no knowledge of, connection to, or involvement in the conspiracy to kill Professor Markel,Finally, if the State were somehow able to satisfy the “proof evident, presumption great” standard—which, respectfully, it cannot—the Court would nevertheless have the discretion to grant bail, based upon its consideration of the traditional bail factors, including the nature and circumstances of the offense: flight risk and community ties; criminal history; danger to the community; and any other circumstances that the Court considers relevant, As established below, Mr. Adelson has no criminal history, has no history of legal issues in any capacity, and fully cooperated with the authorities in his arrest. Additionally, since 2016, when the authorities made clear to Mr. Adelson that he was a suspect in this case, Mr. Adelson has traveled extensively — including internationally—and has always returned, Lastly, some form of pretrial release is essential to vindicate Mr. Adelson’s constitutional right to participate in his own defense, especially given the enormous volume of discovery in this case, Mr. Adelson’s inability to efficiently review the discovery materials at the Leon County Detention Facility, and the other logistical challenges that his detention would pose for the preparation of this complex case. In short, although the charges against him are serious, Mr. Adelson is not a flight risk; he is not a danger to the community; and, to assuage any concerns related to his pretrial release, he is willing to agree to home confinement with monitoring. ‘THE LEGAL STANDARD FOR PRETRIAL RELEASE IN THIS CASE Under Article I, Section 14 of the Florida Constitution and Rule 3.131(a), a defendant in a capital or lfe-imprisonment case is entitled to pretrial release as a matter of right, unless “the proof of guilt is evident or the presumption is great ....” State v. Arthur, 390 So. 2d 717, 718 (Fla, 1980) (“Under this provision [of the Constitution], if the proof is evident or the presumption great that a person accused of a capital offense or an offense punishable by life imprisonment is guilty of the offense charged, then the accused is not entitled to release on reasonable bail as a matter of right,All other classes of accused persons are entitled to release on reasonable bail until adjudged guilty.” (emphasis added)). At an Arthur hearing, the State has the burden of showing—through sufficient evidence other than the indictment “that the proof of guilt is evident or the presumption is great.” Id, at 720 (footnote omitted) The Florida Supreme Court has long held that the “proof evident, presumption great” standard is even more stringent than the standard of proof-beyond-a-reasonable-doubt, the standard for a conviction, -g., State ex rel. Van Eeghen v. Williams, 87 So. 2d 45, 46 (Fla. 1956) (explaining that “the degree of proof sufficient to deny bail” under the “proof evident, presumption great” standard “is actually a greater degree of proof than that which is required to establish guilt merely to the exclusion of a reasonable doubt” (discussing Russell v. State, 71 So. 27, 28 (Fla. 1916)); see also, e.g., Kirkland v. Fortune, 661 So. 2d 395, 397 (Fla, Ist DCA. 1995) (same). In operation, under the “proof evident, presumption great” standard, the State’s evidence of guilt must be unassailable—the defendant's guilt must be “[mlanifest, plain, clear, obvious, conclusive” or “beyond question of doubt.” Kirkland, 661 So, 2d at 397-98 (quoting Russell, 71 So. at 28) (internal quotation marks omitted). Thus, as the court stated in Perry, the “proof evident, presumption great” standard means that where the state's evidence, although not insufficient to convict for a capital of life offense, is arguably impeached in substantial respects by other evidence or is rendered doubtful by substantial contradictions and discrepancies in the state's case, the proof is not stronger than beyond a reasonable doubt and, accordingly, the accused is entitled to pretrial bail as a matter of right for such offense. State v. Perry, 605 So. 2d 94, 96-97 (Fla. 3d DCA 1992) (emphasis added). Finally, even if the State prevails in showing that proof of the defendant's guilt is evident, or that the presumption of the defendant's guilt is great, a trial court may nevertheless exercise itsdiscretion to grant the defendant bail. Arthur, 390 So, 2d at 719 (“When the proof is evident or the presumption great that the accused committed a capital or life imprisonment offense, the accused may still come forward with a showing addressed to the court’s discretion to grant or deny bail.”) “On this issue, the burden is on the accused to demonstrate that release on bail is appropriate.” Id. at 720; see also, e.g., Reeves v. Nocco, 141 So. 34 775, 779 (Fla, 2d DCA 2014) (explaining that, if the State meets its burden, “the circuit court may exercise discretion to grant pretrial release if the defendant can prove that conditions of release can effectively protect the public from the risk of physical harm, assure his presence at trial, and assure the integrity of the judicial process”). As shown below, the State cannot satisfy the “proof evident, presumption great” standard to deprive Mr. Adelson of his constitutional entitlement to pretrial release as a matter of right and, in any event, the Court should exercise its discretion to grant Mr. Adelson bail THE STATE CANNOT SATISFY THE “PROOF EVIDENT, PRESUMPTION GREAT” STANDARD The State’s Purely Circumstantial Evidence Is Insufficient to Deprive Mr. Adelson of His Constitutional Right to Pretrial Release, as a Matter of Well-Settled Florida Law Throughout more than six years of investigation and multiple trials of Mr. Adelson’s purported co-conspirators, the State has theorized that Mr. Adelson financed the murder of Professor Markel. Yet, after all this time, the State has failed to produce a single witness—or even a single item of evidence—directly establishing that Mr. Adelson paid Magbanua, Garcia, or Rivera to facilitate, orchestrate, or carry out the murder, or directly establishing that Mr. Adelson was involved, in any capacity, in the murder. The State’s case against Mr. Adelson is purely circumstantial, and that factor, alone, precludes the State from satisfying the “proof evident, presumption great” standard here, and from depriving Mr, Adelson of his constitutional right to pretrial release as of right.The First DCA’s opinion in State ex rel. Hyde v. Thursby, 184 So. 2d 505 (Fla, Ist DCA 1966) is instructive regarding the legal effect of circumstantial evidence in the context of an Arthur hearing, In that case, the defendant, who was charged with first-degree murder, appealed the trial court's order denying his motion for bail. /d. at 506. In describing the facts of the case, the court explained that there were only two items of evidence “connecting the defendant with the death of the deceased"—a witness's statement that the defendant's car was parked near the location where the authorities ultimately found the victim's body; and a statement from the victim's son, who alleged that the defendant had incriminated himself, to him, in connection with his mother’s death. ‘See id. at 506-07. The court, after analyzing this evidence, determined that the State’s evidence of the defendant's guilt was only “circumstantial,” held that this circumstantial evidence was insufficient for the State to satisfy the “proof evident, presumption great” standard in that case, and reversed the trial court’s order denying the defendant's motion for bail: At this point in the proceedings, the only evidence of the State is circumstantial, and as such it is necessary to be more than a suspicion. It must exclude every other hypotheses except that of guilt... The Supreme Court of Florida has held in Russell v. State, 71 Fla, 236, 71 So. 27 (Fla. 1916), that the evidence must be stronger than beyond a reasonable doubt to prevent bail being afforded pursuant to Section 9, Declaration of Rights. We have reviewed the evidence as reported in the record before us, and come to the conclusion that the evidence does not stand the test of proof of guilt as being evident or the presumption great. There is no evidence before us of premeditation which is essential to a conviction of first degree murder. Id. at 507 (emphasis added) (internal citation omitted); see also, e.g., Nix v. MeCallister, 202 So. 2d 1, 2 (Fla. Ist DCA 1967) (reversing the trial court's order denying the defendant's motion for bail after a mistrial, because “the evidence of guilt is wholly circumstantial and does not measure up to that standard required to justify denial of bail pending retrial” (emphasis added).Here, as in Hyde, the State’s evidence against Mr. Adelson for the charges of first-degree murder, conspiracy, and solicitation is purely circumstantial. The State has not produced a single witness or item of evidence directly establishing that Mr. Adelson ordered Professor Markel’s murder, that he participated in the planning of Professor Markel’s murder, or that he promised to pay anyone for facilitating or carrying out Professor Markel’s murder. The State has not produced a single witness or item of evidence directly establishing that Mr. Adelson paid Magbanua, Garcia, Rivera, or anyone else in exchange for Professor Markel’s murder. Indeed, the State has not produced a single communication, after hundreds of hours of electronic surveillance of Mr. Adelson, in which Mr, Adelson or anyone else directly implicates Mr. Adelson in the murder of Professor Markel. And that is because no such witnesses or evidence exist. With the exclusively circumstantial evidence that the State could present at the Arthur hearing, the State simply cannot meet its obligation of “excludfing] every other hypotheses except that of guilt” for first-degree murder, conspiracy, and solicitation—the State’s burden when, as here, a prosecution is based solely on circumstantial evidence. Hyde, 184 So. 2d at 507 (emphasis added), see also, e.g., Kirkland, 661 So. 2d at 397-98 (explaining that, generally, for the State to satisfy the “proof evident, presumption great” standard, the defendant’s guilt must be “[mJanifest, plain, clear, obvious, conclusive” or “beyond question of doubt” (internal quotation marks omitted)). This factor—the dearth of any direct evidence against Mr, Adelson—is the key factor that distinguishes Mr. Adelson from his co-defendants, including Magbanua, whom the Court declined to give bail. In addition to the existence of a romantic relationship between Magbanua and Garcia (the now-convicted shooter) at the time of Professor Markel’s death, in October 2016, Rivera implicated Magbanua in the conspiracy and told the State that Magbanua had helped coordinate Professor Markel’s murder, including payment for the murder—information that led directly toMagbanua’s arrest just one day later, But as against Mr. Adelson, no one—neither his. co- defendants, nor any other witness—has provided any information directly linking him to the conspiracy, Mr. Adelson is thus in a unique position, factually and legally, for the purposes of his request for pretrial release.” Finally, the Dolce Recording—which former State Attorney Meggs dismissed in 2016 as “speculation” about Mr. Adelson’s involvement in the murder—is emblematic of the State’s inability to meet its burden at the Arthur hearing, The State contends that the “enhanced” Dolce Recording demonstrates Mr. Adelson’s guilt, but the recording —on its face—i equally consistent with an alternative theory: that Mr, Adelson was not involved in and did not know about the murder plot, as Mr. Adelson repeatedly states throughout the Dolce Recording itself. Because the State— through the Dolce Recording, or through any other indirect evidence that it could possibly present against Mr. Adelson—simply cannot eliminate “every other hypotheses except that of guilt” and establish Mr, Adelson’s guilt“beyond question of doubt,” the State cannot mest the “proof evident, presumption great” standard, See, e.g., Hyde, 184 So, 2d at 507; Kirkland, 661 So, 2d at 397-98. Mr. Adelson is thus entitled to pretrial release as a matter of right. See Arthur, 390 So, 2d at 718, ALTERNATIVELY, THE COURT SHOULD EXERCISE ITS DISCRETION The Court Has the Discretion to Grant Mr. Adelson Bail Even if the State were somehow able to satisfy the “proof evident, presumption great” standard here, the Court would nevertheless have the discretion to grant Mr. Adelson bail, Arthur, 7 Upon information and belief, shortly before Magbanua’s retrial in May 2022, the State may have offered to consent to Magbanua’s pretrial release on a bond if Magbanua agreed to delay her retrial so that the State could try Magbanua and Mr. Adelson jointly. Also upon information and belief, before Magbanua’s retrial, the State offered to provide Magbanua with immunity for the charges against her, if Magbanua agreed to cooperate with the State and to testify against Mr. Adelson. Magbanua rejected the immunity offer and was convicted at her retrial 10390 So, 2d at 719. In this situation, Mr, Adelson may obtain bail, on reasonable conditions, if he “can prove that conditions of release can effectively protect the public from the risk of physical harm, assure his presence at trial, and assure the integrity of the judicial process.” Reeves, 141 So. 3d at 79, Rule 3.131(b)(1) provides that a trial court “shall impose the first of the following conditions of release,” or combination of conditions, which will protect each of the three previously mentioned interests, with the first condition being “personal recognizance of the defendant,” followed by increasingly restrictive conditions of release. And Rule 3.131(b)(3), in turn, provides that “[i}n determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be,” a trial court may consider the following non- exhaustive factors the nature and circumstances of the offense charged and the penalty provided by law; the weight of the evidence against the defendant, the defendant's family ties, length of residence in the community, employment history, financial resources, need for substance abuse evaluation and/or treatment, and mental condition; the defendant's past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings; the nature and probability of danger that the defendant's release poses to the community; the source of funds used to post bail, whether the defendant is already on release pending resolution of another criminal proceeding or is on probation, community control, parole, or other release pending completion of sentence; and any other facts the court considers relevant. Mr. Adelson fully appreciates the seriousness of the charges against him, Still, individually and collectively, the remaii ng factors weigh decisively in favor of reasonable bail for Mr. Adelson, an individual with no criminal history who has, during the entire six years that he has lived with the specter of being prosecuted in this case, never fled or otherwise evaded justice. raThe Bail Factors Weigh Strongly in Favor of Pretrial Release on Reasonable Conditions First, and most notably, Mr. Adelson is not a danger to the community (physically or otherwise), and he is not a flight risk. Mr, Adelson is a 46-year-old dentist from Broward County, Florida, and he has lived in Florida all of his life. All of Mr. Adelson’s immediate family members reside in the South Florida area. Mr, Adelson has no criminal history, has no history of legal issues in any capacity, cooperated fully with the authorities during his arrest in April 2022, and, for the past six years, has offered to surrender to the authorities if he was ever prosecuted. Given these factors, Mr. Adelson’s exemplary record with the law, and the lack of any instances of violent ot dangerous conduct in his past, Mr. Adelson is not a danger to the community. Mr. Adelson, likewise, is nota flight risk. Since the fall of 2016, when Mr. Adelson learned that he was a suspect in this case, and after the arrests of his co-defendants, he has traveled extensively—including to Croatia, Slovenia, Spain, the Philippines, Colombia, the Philippines (again), Thailand, South Korea, Costa Rica, Mexico, and Saint Martin.* Each of these countries: except for Thailand and South Korea—has abolished the death penalty outright.” And, crucially, the extradition treaty between the United States and almost every one of these abolitionist countries contains an article, providing that if the offense of extradition is death-eligible in the requesting state, but not in the requested state, the requested state has the authority to refuse extradition unless the requesting state gives specific assurances, ® Mr. Adelson’s international travel occurred on the following dates, nearly all of which were after the release of the Draft Affidavit in September 2016, and also after the arrests of his co-defendants: August 2016 (Croatia, Slovenia, and Spain); September 2016 to October 2016 (the Philippines); October 2016 (Colombia); October 2017 (the Philippines, Thailand, and South Korea); January 2020 (Costa Rica); September 2020 (Mexico); 2021 (St. Martin) ° Abolitionist and Retentionist Countries, DEATH PENALTY INFORMATION CENTER, https: //tinyurl.com/3mjcxhwm (explaining that Thailand is a “retentionist” country, and that South Korea is an “abolitionist in practice” (although the country has not formally abolished the death penalty) 12Where the offence for which extradition is sought is punishable by death under the laws in the requesting State and not punishable by death under the laws in the requested State, the requested State may grant extradition on the condition that the death penalty shall not be imposed on the person sought, or if for procedural reasons such condition cannot be complied with by the requesting State, om condition that the death penalty if imposed shall not be carried out. If the requesting State accepts extradition subject to conditions pursuant to this Article, it shall comply with the conditions, If the requesting State does not accept the conditions, the request for extradition may be denied. Agreement on Extradition Between the United States of America and the European Union art. 13, June 25, 2003 (emphasis added) (applicable, as relevant here, to Slovenia, Spain, France, and the Netherlands (the latter two of which control Saint Martin)); Extradition Treaty Between the United States and the Republic of Colombia art. 7, Sept. 14, 1979 (“When the offfense for which extradition is requested is punishable by death under the laws of the Requesting State and the laws of the Requested State do not permit such punishment for that offense, extradition may be refused unless, before extradition is granted, the Requesting State furnishes such assurances as the Requested State considers sufficient that the death penalty shall not be imposed, or, if imposed, shall not be executed.” (emphasis added)); Extradition Treaty Between the United States and the Republic of Costa Rica art. 5, Dec. 4, 1982 (substantially identical to language of Colombia extradition treaty); Extradition Treaty Between the United States and the United Mexican States art, 8, May 4, 1978 (same); Extradition Treaty Between the United States and the Republic of the Philippines art. 5, Nov. 13, 1994 (providing, in relevant part, that “extradition may be refused unless the Requesting State provides such assurances as the Requested State considers sufficient that if the death penalty is imposed, it will not be carried out”) Thus, in this death-eligible case, Mr. Adelson had opportunities—ample opportunities—to flee to abolitionist countries that very well may have declined to extradite him to the United States. 1BYet, Mr. Adelson always returned to Florida, in part because of the very real possibility of having to face prosecution in this matter, a possibility that materialized as early as September 2016, as discussed above. Mr. Adelson, in short, had multiple chances to flee, to countries whose governments, norms, and practices may have precluded (or significantly impeded) extradition, and he correctly chose to return, Mr, Adelson is simply not a flight risk Additionally, even if the Court had some concems about danger or flight risk, appropriate conditions—like home confinement with monitoring—would assuage any such concerns. These factors, in sum, weigh strongly in favor of reasonable bail, even in this serious case. Cf, &.g., Reeves, 141 So, 3d at 778-79 (explaining, in remanding for further proceedings, that the “defendant presented exceptionally strong evidence in support of his request for pretrial release” in a second-degree murder case, when the defendant had no prior criminal record; the defendant had several generations of relatives in the community; there was no evidence of drug or alcohol issues; and the trial court determined, before the appeal, that the defendant was not a danger to the community or a flight risk), Second, with respect to the weight of the evidence against Mr. Adelson, this factor also militates in favor of reasonable bail, for reasons similar to those discussed above. The State’s case against Mr. Adelson, as noted, is based entirely on circumstantial evidence and, for that basic reason, the State cannot satisfy the “proof evident, presumption great” standard here. But even outside of this heightened framework for capital or life-imprisonment cases, and at the level of common-sense evaluation, the State's evidence against Mr. Adelson is weak. Although the State has theorized, for nearly six years and over the course of two trials, that Mr. Adelson financed Professor Markel’s murder, the State has not yet produced a single witness—or a single document or communication—directly or even inferentially supporting that theory. For all of the reasons 14already discussed, therefore, the amount, nature, and quality of the State’s evidence against Mr. Adelson weigh strongly against prolonged detention without bail before trial Finally, with respect to other relevant factors, some form of pretrial release—even if home confinement in South Florida, where Mr. Adelson and his counsel reside—is essential to vindicate Mr. Adelson’s constitutional right to participate in his own defense in this complex case. This matter, as noted above, will involve an enormous volume of discovery—including hundreds of hours of intercepted phone calls, over 70 deposition transcripts, the transcript of the first trial (3,428 pages), and the transcript of Magbanua’s retrial (Which will likely be similar in length to the transcript of the first trial), See, e.g., State's Answer to Demand for Discovery and Demand for Notice of Alibi (D.E. 32) (filed June 17, 2022) (disclosing, across 16 pages, hundreds of witnesses and items of evidence). Mr. Adelson’s continued detention would, as a practical matter, make it impossible for him to efficiently analyze this mountain of discovery, to participate in his own investigation of the case, to readily communicate with and guide his attorneys, and to otherwise prepare his defense to the State’s serious charges. This is because, among other key reasons, the Leon County Detention Facility currently prohibits inmates from receiving legal materials in paper format, and instead requires attorneys to mail legal materials for upload into the jail’s legal “portal” for electronic delivery to an inmate. In this discovery-intensive case, in which it is critical for Mr. Adelson to have the ability to access, analyze, and organize the voluminous materials, this cumbersome process would result in significant delays and logistical challenges and, thus, would severely prejudice Mr. Adelson’s constitutional right to participate in his own defense. Significantly, courts have held that these jjustifications—including the need for a defendant to actively participate in his defense—weigh in favor of pretrial release on appropriate conditions, instead of pretrial detention, See, e.g., UnitedStates v. Bodmer, 2004 WL 169790, at *3 (S.D.N.Y. Jan. 28, 2004) (“Bodmer faces serious criminal charges, and pretrial detention may ‘hinder (] his ability to gather evidence, contact witnesses, or otherwise prepare for his defense.” .. Because of the nature of the charges, the Government expects discovery to be voluminous. ... It will be far easier for Bodmer to assist his counsel in reviewing and responding to discovery if counsel has regular, uninterrupted access to him.” (alteration in original) (intemal citations omitted). For this additional reason of constitutional concem, Mr. Adelson asks that the Court order the functional equivalent of pretrial detention—home confinement with monitoring and other appropriate conditions. CONCLI 10! REQUEST FOR EVIDENTIARY HEARING For the above reasons, Mr. Adelson respectfully requests that the Court order an evidentiary hearing under Arthur as soon as practicable; that the Court grant this motion for pretrial release; and that the Court order, pending Mr. Adelson’s trial, home confinement with monitoring and with whatever other conditions that the Court considers appropriate. Dated: July 28, 2022 Respectfully submitted, MARCUS NEIMAN RASHBAUM & PINEIRO LLP 2S. Biscayne Blvd,, Ste. 2530 Miami, Florida 33131 Tel: (305) 400-4260 By: 4s Daniel L. Rashbaum Daniel L. Rashbaum, Esq. Florida Bar No. 75084 Attorneys for Mr. Adelson 16CERTIFICATE OF SERVICE I certify that, on July 28, 2022, | filed the foregoing document with the Florida Courts E~ Filing Portal, which will cause a copy of this document to be served on all counsel of record 8 Daniel L. Rashbaum Daniel L. Rashbaum, Esq. 17