The case against the Pulse shooter's wife was looking pretty awful Thursday afternoon.
As prosecutors rested their case against Noor Salman, U.S. District Judge Paul Byron said he was "very concerned" following a discussion Thursday about whether the government withheld evidence from Salman's defense attorneys.
At issue was the testimony of FBI Special Agent Richard Fennern, who said he knew "within days" of Omar Mateen attacking the gay nightclub Pulse that it was "highly unlikely" that Mateen or his wife Salman had driven to scout out the location in the days before June 12, 2016.
Fennern, who specializes in analyzing cellphone data, examined phones belonging to the couple and concluded based on cell tower pings and location data that their phones did not go near Pulse during their visit to Orlando on June 8.
"[Mateen's] phone did not come up to the area of Pulse until 12:41 a.m. on June 12," Fennern said. "Prior to that, his phone had never been up here. [Salman's] phone had never been near the Pulse nightclub."
This evidence contradicted a statement Salman allegedly made to FBI agents in the hours after her husband killed 49 people at Pulse. FBI Special Agent Ricardo Enriquez testified that Salman told him she and her husband drove around Pulse after dinner at a falafel restaurant, shopping at the Florida Mall and a visit to a Kissimmee mosque. Location data, receipts and security footage recorded them at those locations.
"We drove around the Pulse nightclub for about 20 minutes with the windows of the car down," the statement says. "Omar was driving slowly, looking around and at one point stated, 'How upset are people going to be when it gets attacked.'"
The statements were not written by Salman herself – Enriquez testified that she had dictated to him because she was "too nervous to write." Salman's conversations with FBI agents that day were not recorded. Her attorneys have argued Salman's confession to the FBI was coerced, while the government argues it proves Salman knew about her husband's plans for a massacre.
After discovering that it was highly unlikely that Salman and Mateen had time to go to Pulse on June 8, Fennern told the court he informed the FBI case agents of his findings in the days after the shooting. Prosecutors filed an indictment
and arrested Salman in early 2017 on charges of aiding and abetting Mateen's material support of the terrorist organization ISIS and obstruction of justice. In March 2017, prosecutors seeking to have Salman's bail revoked
said Salman "admitted to law enforcement that she went with her husband to Orlando and drove around the Pulse night club prior to the attack." Byron granted the government's motion to stay Salman's release based partially on this assertion.
"It struck me because I clearly remember the transcript," Byron said after the jury left the room. "One of the things that was argued was that there was casing of Pulse."
Assistant U.S. Attorney Sara Sweeney said she interpreted from the defense's motions that Salman had told her lawyers that she had scouted Pulse with her husband. Charlie Swift
, director of the Constitutional Law Center for Muslims in America, jumped up and shook his head after Sweeney's statement.
"If my client had told me she was there, I wouldn't have gone after this with such vigor," Swift told the judge.
Sweeney said the government gave Salman's defense access to a presentation with cellphone data evidence last August that showed Salman's phone was never in the vicinity of Pulse – but Swift argued that by then, he had already spent thousands of dollars in hiring experts to do the same thing.
Swift and Fritz Scheller asked Byron to grant Salman bail based on a possible violation of the Brady Rule
, which requires the government to turn over exculpatory evidence favorable to a defendant. Failure to do so is a violation
of due process.
"The government was well aware that the defendant never scouted out the Pulse," Scheller said.
Byron denied this request in court but said the defense was welcome to file a motion. The federal judge also admonished prosecutors for possibly committing a "serious offense."
"The government doesn't have to be told to do the right thing," Byron said. "They must do it."
Salman's defense will file a procedural motion for a judgement of acquittal Friday and both parties will participate in the jury charge conference. The defense is expected to bring witnesses to begin its case on Monday. If convicted, Salman could get a life sentence in federal prison.
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