During the trial of Noor Salman, the wife of the Pulse Nightclub shooter, the prosecution has largely built its case based on Salman’s statements to FBI agents. Allegedly, Salman told FBI agents that she and her husband scouted Pulse Nightclub before his attack. The problem with this “evidence” is that a forensic examination of her cellular telephone and other electronic devices prove Salman was lying. Why would Salman admit to something that can be proved she never did? The more important and appropriate question is whether Salman ever said that to the FBI.
Fans of police docudramas and the Netflix special Making A Murderer assume the answer lies in the video recording of the interview. However, most people do not realize the overwhelming majority of interviews are not recorded. Unlike local law enforcement agencies, federal authorities do not record interviews, but simply take notes on what they believe they heard in response to questions they believed they asked. Sometimes days later, these notes are used to type reports of the interview. The notes are sometimes destroyed, but in any event, the report is not a verbatim transcription of the interview. In Salman’s case, the agent was awoken in the middle of night, fed pieces of information about a terrorist attack that was unfolding, and pressured from FBI Headquarters to get evidence immediately. The agent set out to interview Salman with the weight of that on his shoulders. Although local police with recording equipment were with the FBI agent, local police were prohibited from participating and recording the interview. Maybe Salman said she cased Pulse Nightclub with her husband, and maybe she did not. We will never know. What we do know is the FBI said she did, and no recording of the interview exists to contradict the FBI.
Seven months after the Pulse massacre in January 2017, prosecutors had Salman arrested in California. Although she had been free in the community since June 2016, prosecutors sought to detain her until her trial in March 2018 and relied on her statement, among other things, as proof that she was a danger to the community. Although the fact that prosecutors knew she did not scout the nightclub with her murderous husband was not revealed to the Judge, the Judge granted Salman bond. Within days federal prosecutors appealed the decision based on Salman’s admission, but prosecutors again failed to tell the Judge they knew Salman did not scout the nightclub. The Florida trial Judge reversed the California Judge and ordered Salman held without bond. Despite prosecutors continuing duty to correct mistakes and omissions, the trial Judge did not learn about the forensic evidence until the end of the prosecution’s case. While the Judge chastised federal prosecutors for not timely disclosing that Salman’s statements could not be true, there was little that could be done about it.
While this trial has highlighted this flaw in our criminal justice system, lawyers experienced in federal criminal defense encounter this problem often. It is essential to have lawyers who understand the Constitutional and practical implication of speaking with authorities. This ensures you and your clients do not walk into felony convictions. It is imperative to retain counsel experienced in national security and criminal investigations to navigate the perils you face. The United States Supreme Court noted the 5th Amendment Right to Remain Silent protects both the guilty and innocent. If you believe you are under federal investigation, or if you are an attorney with a client under federal investigation, call us immediately.