ORLANDO, Fla. – Attorneys for the Pulse gunman's widow filed a motion to acquit their client Thursday night, after a government witness testified that Noor Salman could not have driven by the Pulse nightclub on June 8.
After the testimony Thursday afternoon, attorneys Fritz Sheller and Charles Swift asked U.S. Middle District Judge Paul Byron to grant bail based on a possible violation of the Brady Rule after a government witness testified that Salman did not go with her husband Omar Mateen to the nightclub in Orlando days before the mass shooting to scout the location, based on information from cellphone towers.
A statement the FBI acquired from Salman on June 12, said she and Mateen drove by the Pulse nightclub during their visit to Orlando but based on cellphone tower data, that could not have happened.
After FBI testimony showed that fact, Byron inquired when the government knew that and asked why it was part of the reason Salman was denied bail in California.
"It struck me because I clearly remember the transcript in front of the magistrate judge," Byron said. "One of the things that was argued was that there was casing of Pulse."
Salman was arrested in January 2017 and her bond was first denied on Feb. 1, 2017.
In his March 2017 order revoking Salman’s bond (after a temporary stay of her release after her arrest in January 2017) Judge Paul Byron specifically stated Salman’s alleged visit to Pulse as a reason for keeping her in jail until her trial. pic.twitter.com/ebqVTa3t80— News 6 Pulse Trial (@News6PulseTrial) March 22, 2018
Byron said he will consider a motion to grant bail when defense attorneys file one, but said that when Salman was extradited to Florida, he denied her bail for other reasons other than possible casing of the gay nightclub.
Thursday night the defense team asked the judge to dismiss all charges against Salman, writing that the government "offered scant evidence that she possessed" to provide she aided and abetted Mateen or intentionally lied to the FBI.
In the motion, the defense says the government offered insufficient evidence of Salman's knowledge of the attack, could not show intent, could not prove that she cased the Pulse nightclub with Mateen and said that accepting money and gifts is insufficient to prove her guilt.
Salman's attorney said that hiring an expert to testify this when the government witness would have done the same thing was very expensive.
"If my client had told me she was there, I wouldn't have gone after this with such vigor," Swift said.
Byron said a violation of the Brady Rule, which means the prosecution cannot suppress evidence favorable to the defendant, is a serious offense.
"The government doesn't have to be told to do the right thing. They must do it," Byron said.
Assistant U.S. Attorney Sara Sweeney said the defense was given access to all the government's evidence in August and she was under the impression that Salman had told her attorneys that she scouted Pulse with her husband.
Salman’s family & uncle almost in tears talking about today’s revelation in court that govt. can’t prove Salman cased Pulse with Mateen. The judge seemed concerned saying that’s one main reason Salman wasn’t granted bond. Salman’s attorneys plan to ask for bail pic.twitter.com/hrUZcBxwne— News 6 Pulse Trial (@News6PulseTrial) March 22, 2018
Fritz cited several studies show people accused of a crime and denied bail are more likely to be convicted and Byron replied, "A denial of bail is not proof of guilt."
"I know you know that, your honor," Fritz said. "But the government has used that statement again and again and again."
At the end of trial Thursday, Salman's family stood on the steps of the federal courthouse and said they have faith she will be found innocent, but that Salman was not shown justice when this evidence was not shared with her attorneys.
"Her son keeps asking about his mother. He wants to know why she is in jail," Salman's uncle said. "We know the justice system is going to take care of it, but the way it's handled, that's wrong."
The U.S. government has called dozens of witnesses during the last five days of testimony to show that Salman, 31, knew what Mateen was planning and that she was with him while he was making final preparations. She also is accused of lying to the FBI after the shooting.
On Thursday, Sweeney walked FBI Special Agent Richard Fennern step by step through more than a week of cellphone data, spending activity and surveillance video to show the Pulse gunman and Salman’s activities leading up to the mass shooting in Orlando on June 12, 2016.
Fennern, who is part of the FBI’s cellphone analysis team, was the second to last witness called to testify Thursday in the case against Salman.
The U.S. government used cell tower pings and other location evidence to corroborate Salman’s statements made to the FBI in the hours after the mass shooting.
For every piece of evidence, Sweeney would then ask Fennern to read a quote from Salman’s statement, written by an FBI agent, to the jury. Sweeney also handed out copies of Salman’s three-part statement to all of the jurors.
In her statement, which her defense team says was coerced, Salman said that she knew Mateen was getting close to an act of violence because of his recent spending on guns, ammunition and other purchases that exceeded his annual salary.
After Fennern read Salman’s written words saying she “knew” Mateen was preparing for a violent act because he spent a lot of money and bought ammunition and guns, the jury was shown video surveillance of Mateen, Salman and their son on May 22 at Walmart, making an ammunition purchase for his work weapon.
Salman drove the family and looked for a toy with her son before checking out with Mateen. She set the Paw Patrol toy next to her husband’s ammunition purchase. When he purchased the Sig Sauer long gun and Glock handgun, Mateen was alone, according to cellphone records and video surveillance.
Almost every statement she made about Mateen’s activity was read aloud then followed by evidence showing it happened just as she told the FBI.
The one thing the jury did not see, however, is evidence that the couple drove by the Pulse nightclub during a June 8 visit to Orlando. A statement the FBI acquired from Salman on June 12, it says she and Mateen drove by the Pulse nightclub during their visit but according to Fennern's testimony, that could not have happened.
“Her phone had never been near the Pulse nightclub,” Fennern testified.
During cross-examination, defense attorney Charles Swift asked if there was any evidence of that happening, to which Fennern said "no."
Salman's lawyers said their client couldn't have known Mateen was planning an attack on Pulse, because even the gunman didn't know his final target.
Fennern testified that on the eve of June 12 Mateen searched for "Orlando nightclubs" before driving near Eve Orlando nightclub and ultimately the Pulse nightclub at 1:35 a.m., according to cellphone records. Mateen also was at Disney Springs before he headed north into downtown Orlando.
Byron followed up with Fennern asking him when he first told the FBI case agent in charge of his findings, he said soon after the June 2016 shooting he informed them it was unlikely Mateen or Salman had ever been near Pulse.
The prosecution rested its case Thursday afternoon and the defense will begin to present its case on behalf of Salman on Monday, unless Byron grants the motion to acquit Salman.
Swift said the defense has eight to 10 witnesses to call. The case could be ready for jury deliberation by the end of next week.
Salman faces up to life in prison, if convicted.
Follow live updates below from the U.S. District Courthouse in Orlando from News 6 reporters.