Pulse Nightclub Trial Against Shooter’s Wife; Alternate Jurors, and Opening Statements

                        

 

What did she know and when did she know it? These are the determinative questions in the trial of the wife of Omar Mateen. He is the shooter who entered Pulse, a gay nightclub in Orlando, Florida in June, 2016, and killed 49 people, and wounded 53 more. He did it in the name of the Islamic State. He died at the scene in a shootout with police.

His wife, Noor Salman, is charged with aiding and abetting[1] (helping, assisting, providing material support to) a foreign terrorist organization (the Islamic state), and obstruction of justice[2] by lying to the FBI. For the former charge, the government must prove that defendant associated with a criminal venture, purposefully participated in the criminal activity, and sought by her actions to make the venture successful. Presence at the scene of the crime is not required. For the obstruction count, the government must prove defendant knowingly and willingly made a materially false or fraudulent statement or representation, in a matter within the jurisdiction of the United States. Salam is accused of lying by making misleading and untruthful statements to the FBI. Agents came to her house to interview her while the attack at the nightclub was underway. She denied knowledge of the rampage and any participation. She repeated these assertions throughout the investigation.

Testimony began late last week. If convicted, Salman could face life in prison.

The voire dire, jury selection, took more than a week, which is not surprising in a case of such notoriety. The goal of voire dire is to find an unbiased jury. When media coverage has been exhaustive, as in this case, finding unbiased jurors not influenced by news reporting is typically difficult.

In opening statements, the attorneys presented very different pictures of the defendant. Opening statements are introductory comments made by the attorneys for the plaintiff and the defendant at the start of the trial. This phase of the proceedings offers a valuable opportunity for each lawyer to present to the jury an overview of the case, frame the issues, and summarize the anticipated proof.

The prosecutor reminded the jurors of the horrendous night Mateen inflicted, and recalled the horrible plight of survivors. They heard people being shot while attempting to escape, and some played dead in the bathroom for three hours with Mateen hiding from police in the same bathroom. The prosecutor then depicted the wife as a cunning and willing partner. He referenced location data from cell phones showing that the couple drove to various locations in West Palm Beach and Orlando, together casing possible targets. The prosecutor also referenced a message on Salman’s phone agreeing to fake an alibi for her husband on the night of the killings.

Salman’s defense attorney described her very differently. The lawyer portrayed Salman as a devoted parent of a toddler (the child was then three years old); the victim of a cheating, abusive and controlling husband; and a person who never showed inclinations toward radicalization. Said the attorney; “[Salman]’s only sin is that she married a monster.”

The trial is expected to last three weeks.

The trial will be decided by 12 jurors but 18 were selected which figure includes six alternates. These are jurors selected in the same manner as regular jurors who hear all the evidence but do not help decide the case unless called on to replace a regular juror. The number of alternates is determined by the judge, usually with input from the attorneys. The greater the emotional appeal of a case, and the longer a case is expected to last, the more foreseeable it is that some jurors will need to be replaced and an alternate substituted.

In some states, the alternates are advised of their status at the time of their selection. In other states, no juror is advised whether or not s/he is an alternate until the trial concludes. Then 12 names are drawn from the remaining total, and those 12 are the jurors who deliberate. The reason for the latter procedure is concern that jurors may be less attentive if they think they will not be deciding the case.

Interestingly, the evidence indicates that, on the night of the killings, Mateen first went to the House of Blues Club in Disney Springs, Florida, where he had been a few days earlier with his wife. He entered the club but was apparently disuaded by the presence of many security officers. He then returned to his rented van, did a google search on his cellphone of nightclubs in downtown Orlando. Pulse was on the resulting list.  

DISCUSSION QUESTION:

1) In your opinion, when is the best time to inform alternate jurors of their status - as they are selected , or just before deliberations are to begin?  Why?

2) What is the strategic goal for each side of a case when making opening statements?


[1] 18 USC Section 2.

[2] 18 USC Section 1001.