After dozens of witnesses, the government rested their case on Thursday. On a day when some of the most compelling testimony came from the stand, the government also drew the ire of Judge Byron.
First, let’s discuss the testimony. The government ended with a summary witness who brought together some of the most compelling evidence in a PowerPoint presentation. Overlaying Salman and Mateen’s travel, web history, text messages, and video surveillance leading up to the attack, the government put forth a compelling argument that Salman’s “confession” was corroborated in every way – except one. There is no evidence to corroborate that either Salman or Mateen cased Pulse prior to the June 12, 2016 attack. On the contrary, the digital and forensic evidence suggests it never happened. Before getting into the concerns raised by Judge Byron about that issue, its important to summarize the evidence and what the government had to prove.
The government essentially had to prove that (1) Mateen’s attack was inspired by ISIS, (2) Salman knew about an attack, and (3) she aided or participated in the preparations for the attack. There is ample evidence to show that Mateen was inspired by ISIS. If Salman’s statement is true, there is evidence to believe she knew about the attack beforehand. The defense has attacked the credibility of whether her statement is true, however, there is ample corroboration of her statement (despite the lack of any surveillance of Pulse). The big issue for the government is whether or not Salman aided Mateen or not. Frankly, the evidence on this element is thinner than most would anticipate. The government focused on three areas where they say Salman aided Matten: (1) Salman crafted a “cover story” for Mateen after he left to drive to Orlando, (2) Salman drove Mateen to buy ammunition that was used in the attack, and (3) she provided emotional support leading up to his attack. These facts, however, are each susceptible to a reasonable interpretation of innocence. Salman’s cover story could be interpreted to be she wanted to avoid spending time with her mother-in-law, she drove to Walmart as a family event, and she was merely present when locations were surveilled by her husband. All of these could have been prevented had the FBI asked her a simple question. After Salman allegedly stated that Mateen was asking her whether Disney or a club would be a better target, the FBI failed to ask the appropriate follow up question, “What did your response?” Instead, the jury has to connect circumstantial evidence that she aided his attack plans. The evidence that she knew or anticipated that Mateen would attack somewhere is compelling and the government has some very good circumstantial evidence including Salman using Mateen’s credit card to run up debt before he died, Mateen renting a car in the days before the attack (leaving Salman with a car for after he dies), and uncontradicted testimony that she drove Mateen to buy ammunition. The government has been able to corroborate 99% of her “confession” but the biggest hole, as I see it, remains that the FBI did not ask that follow-up question. As a result, the defense has credible arguments that they can make on her behalf.
Circling back around to Judge Byron’s issue with the government, late yesterday, the final witness stated that the government did not have evidence that Salman visited Pulse nightclub in the days leading up to the attack. However, Judge Byron repeatedly heard from the government during Salman’s bond appeal about her statement that said she visited Pulse. As discussed earlier, the government could not corroborate that fact and it does not sound like the government made that clear on the record. As a result, Judge Byron likely believes that the government either concealed that evidence or misled him. The most likely is that he believes the latter as the government disclosed that information to the defense. The obligation of an attorney, especially a federal prosecutor, is to ensure that the Court is not misled and to do the right thing to avoid anything misleading. Frankly, it should have been made clearer on the record that Salman did not visit Pulse – or at least that the evidence could not place her there. Instead, there is now confusion about whether the government misled the Court. The defense will argue about that lack of corroboration to the jury but, for the prosecutors, the question goes beyond the case and it is an ethical issue. Did they conceal or misrepresent anything to the Court? That issue will be developed by Judge Byron at a later date and it will not effect the outcome of the trial.
We will see if the judge allows the case to proceed to a jury. There is credible evidence that Salman knew about the attack, but the biggest issue is whether she actually aided him.