Pulse nightclub, Orlando, in August 2016. Photo by Flickr user Walter.
After a mass shooting or a terrorist attack, it is only natural for our hunger for justice to tilt toward vengeance. But while those emotions are natural, there is a reason we do not base our legal system on them.
Omar Mateen killed 49 people and wounded dozens more during his 2016 attack on the Pulse nightclub in Orlando. Mateen could not stand trial; police shot him dead at the scene. But seven months later his widow, Noor Salman, was charged with aiding Mateen in providing support to the Islamic State group, as well as with obstruction of justice.
After three days of deliberation, the jury acquitted Salman of both charges in late March.
The prosecution’s case rested mostly on a confession, written by an FBI agent and signed by Salman. At the time she signed the document, Salman was exhausted; she had been questioned for nearly 12 hours. And forensic evidence revealed that multiple statements in the confession were demonstrably untrue. Moreover, FBI Special Agent Richard Fennern admitted under questioning that the agency knew within days that her claim she and her husband had scouted potential targets together was false based on geolocation data from cellphone records. Yet the FBI did not disclose that it knew this claim to be false until well into the trial, and used the confession to deny Salman’s bail request even knowing parts of it to be untrue.
This alone arguably might have warranted a mistrial or even dismissal of the charges, but the judge ultimately opted to let the jury decide. And the jury decided that the prosecution never met its burden of proof – in particular, because FBI agents did not record the interview with the defendant in which an agent testified that she confessed that she knew in advance that her husband planned an attack. The jury foreman also cited many serious inconsistencies between FBI agents’ testimonies.
It takes a lot of courage for jurors in a community as traumatized as Orlando not to convict, especially if they suspect the prosecution may be basically correct even if it has not met its burden. In that respect, the citizen-jurors were far more professional than the law enforcement agents who botched the investigation by failing to record Salman’s questioning, mischaracterizing the facts and withholding exculpatory evidence. Thanks to those jurors, the system worked as intended. An unjustified conviction here would not have brought back a single Pulse victim, would not have prevented any future crime – nobody believes the shooter’s widow is a threat, regardless of what they believe about her involvement – and would have separated a small child from his mother without cause. As Orlando Police Chief John Mina said in a statement, “Nothing can erase the pain we all feel about the senseless and brutal murder of 49 of our neighbors, friends, family members and loved ones.”
As for Salman’s purported confession that she knew her husband was going to do something violent, there was no corroborating evidence. Maybe he told her in some sort of terrorist pillow talk, but it is more likely that this was simply the guilt of a survivor who knew that her husband was an unstable, frustrated and violent man, who could easily have pictured him doing something like this someday, and who felt responsible for not somehow preventing what happened. The jury had no right to ignore this reasonable doubt after the prosecution failed to dispel it with admissible evidence.
Another traumatized Florida community recently illustrated what it looks like when the system fails to override emotional fallout. In Parkland, an 18-year-old kid breaks the rules by going to his former high school, where his brother committed a horrible crime. It is after hours. He carries no weapon, merely a skateboard. He threatens nobody. In all likelihood, he was telling the truth when he said he merely wanted to soak it all in. The Parkland tragedy is a lot for anyone to process, let alone an orphaned and ostracized teenager.
So the Broward County authorities arrest him, charge him with criminal trespass and seek $500,000 bail? These would be the same authorities who stood outside while a shooter mowed down victims inside the school? What courage.
It took a sensible judge and belatedly reasonable prosecutors to let Zachary Cruz plead no contest to trespass and give him six months of probation. Locking him up in the first place was little more than posturing. At best, it was the sort of disciplinary act a parent might permit, for a night, to warn a teenager who broke curfew that actions have consequences. OK, message sent.
By all means, prosecute the perpetrators of these awful crimes whenever there is someone still alive to prosecute. Many times there isn’t. Prosecuting scapegoats does not make anyone look good, except for the judges and jurors who do their duty by ensuring that spite and vengeance are not confused with justice.