The discussion began almost immediately after the abhorrent Orlando shooting took place. Should the shooter’s wife face criminal charges? Even before details were released concerning her alleged involvement, numerous members of the “Court of Public Opinion” were passionately crying out for her arrest, believing that she had to have known of his evil plot and/or must have participated in some way. So why hasn’t she been arrested up to this point?
Question 1: “What did she know?”
In analyzing whether she should be stripped of her liberty and charged with criminal offenses, the first question that must be asked is: “What did she know?” Thursday of this week, she was saying the same thing as the character Sgt. Schultz from “Hogan’s Heroes, “I see nothing! I know nothing!” She stated that the media sources are wrong. She claimed that didn’t know what her husband was up to prior to the tragedy, never drove him to the ammunition store, and never went with him to scope out Pulse nightclub at any time. If that’s the truth, then this analysis is over. No criminal charges are justified. Actually, if that really is true, then I’d like to immediately begin writing an article about how we cannot trust the media and their sources. Obviously, if she didn’t know that her husband was planning this horrific attack, then even if she did drive him to the ammunition store and/or to Pulse nightclub, she has committed no criminal act. It would be fundamentally unfair for her, or anyone for that matter, to be held criminally responsible for assisting someone complete legal tasks without knowing that they were actually aiding and abetting them in a criminal act. He could have needed a ride to the ammunition store to buy ammo for target practice in furtherance of protecting himself and/or his family. He could have asked his wife to drive him to Pulse nightclub for many reasons other then to commit the worst mass shooting in U.S. history. So she must have known about his plot before hand or else she cannot be charged.
Question 2: “What if she knew about his plot in advance of the shooting?”
Knowing of someone’s intent to commit a criminal act and not reporting it to law enforcement is not a crime. The closest thing that makes it a crime is a little known and rarely used federal statute called Misprision of a Felony. In order to prove that crime against her, prosecutors must prove that she knew he was going to commit a felony, and that she failed to report, but also, that after the crimes were committed, she engaged in an act of “concealment.” That element requires that she do some act in addition to simply knowing about the plot and failing to report it. Examples include, but are not limited to: Hiding evidence, lying to law enforcement, and intimidating a witness. Absent that additional element of concealment, she cannot be held criminally responsible for failing to report the crime, assuming she didn’t knowingly help him with his plot. Assuming she knew in advance but failed to disclose to law enforcement, the court of public opinion is still free to convict and condemn her as many have already done, finding that failing to report a plot like this makes her morally repugnant.
Question 3: “Did she assist him in any way?”
If she aided or abetted him in even the most minor way while having knowledge that he was going to carry out the shooting, then she should be charged criminally. If the media reports that we are hearing are true, and she drove him to the ammunition store to buy ammo and/or to scope out the nightclub while knowing of his plan, she is just as legally guilty of the same offenses as her deceased husband. She could be charged with 50 counts of first degree murder and 53 counts of attempted murder, among many other offenses. For example, the guy who merely provides the map to the bank to the bank robbers knowing of their diabolical plan, is just as guilty as the armed offenders who stormed the bank. Similarly, if the shooter’s wife helped him in the most minor way while knowing of his plan, she has committed the same offenses as he.
Question 4: “What if she tried to talk him out of it?”
Let’s say that she knew he was going to commit these heinous offenses, yet chose to drive him around, which aided his plan even in the smallest of ways, all the while trying to talk him out of it. Still guilty. She doesn’t get a pass because she didn’t agree with what he was doing yet continued to assist him. If he forced her to participate against her will, that’s a different story. That defense, known as “duress” is appropriately argued after arrest in front of jury at trial. She will then have to convince the jury that she felt threatened by what she may have deemed an abusive husband and felt that she would be harmed or killed if she didn’t go along with his demands. That defense will prove to be extremely challenging under these circumstances.
So, now you have the “simple” answer to the question, “Should the Orlando shooter’s wife face criminal charges?” The answer is, “It depends.” Questions involving what she knew, when she knew it, what she did and what she didn’t do, must be answered before reaching any conclusions. As I’ve done with many other high-profile cases, I would encourage the public to wait for the facts to come out. Sources can often be wrong. None of us were in “The Room Where It Happened.” (one of my favorite songs from the Broadway smash “Hamilton.”) The “room” I’m referring to the interview room where she was questioned by law enforcement. Let’s first see what law enforcement can prove that she said during their hours of interviews with her. Let’s see what can then be corroborated through credible evidence. Then, and only then, will we know whether criminal charges are warranted.