NJ Criminal Defense Attorney and former NJ County Prosecutor Robert (Bob) Bianchi, Esq., Discusses the Investigation against the Orlando Massacre Shooters Wife on Fox News Happening Now

Robert (Bob) Bianchi, Esq., appeared on Fox News Happening Now with host Jon Scott and Co-guest Lis Wiehl to discuss the Orlando nightclub shooting case and whether the gunman’s wife could be charged with a crime of aiding and abetting, failing to report a crime, and/or conspiracy.

Firstly, our thought and prayers are extended to all of the people killed and affected by this senseless and horrific tragedy.

From what we know today, it is reported that the wife knew of his plans to cause a mass shooting.  She has allegedly spoken to the FBI and stated that she drove him to Disney World and the nightclub to “scout out” those locations.  She also accompanied him to a firearms dealer where the shooter bought a handgun and the semi-automatic, high capacity assault rifle that he used during the attack.

There are basically 3 areas of crimes implicated in a case like this:

  1. Failure to report- Under federal and state law this comes into play but is very nuanced.  Typically, there is no duty under the law to report someone for a crime.  Under federal law, however, there is a law from 1908 called “misprision” of crime which states that you can be charged with a failure to report a federal crime if AFTER the crime was completed and you had something to do with its commission.  The case law points to cases where after the commission of the crime a person harbors the criminal or lies to law enforcement who is investigating it.  Since these are separate crimes in and of themselves under the law, this Misprision crime is rarely ever charged and hard for prosecutors to prove.

Interestingly under Florida law, there is a law that states there is an obligation to report Treason against the state, again after the act was committed.

In the area of reporting terrorism, it is clear that a new law needs to be drafted that makes it a crime to not report knowledge of such a crime BEFORE it is committed.

  1. Aiding and abetting-  It is a crime to assist a person in committing a crime.  A person can be convicted of the crime if they took any substantial step in helping plan, organize, execute, and or hide the crime of another.  It is here where the wife is greatly exposed.  By her knowledge of his plans to commit a mass shooting, helping him “scout” locations for the killings, and going with him to purchase guns, she is without question aiding and abetting his crime.  It makes no difference if she actually commits the crime, or not.  If she assisted and gave “material support” in its planning and/or execution the law holds a person equally as liable as the person committing the actual offense itself.
  1. Conspiracy-  A conspiracy is an agreement between 2 or more people (in most instances) to commit a crime.  It is the agreement itself that is a crime.  The agreement must, however, be combined with a substantial step toward executing that agreement.  The crime does not actually need to occur to be convicted of a conspiracy—only an agreement and some substantial step to advance the agreement.  The agreement can either be verbal, but actions, or both.

In this case, if the reports we know of are true, there is little question she “agreed” to assist him in scouting locations for the terrorist act.  This alone, and in conjunction to being with him at the gun shop, is enough to establish the crimes of aiding and abetting, as well as, conspiracy.

From a practical matter, the FBI wants data.  They want to know if this was planned alone and isolated, or if there is any information regarding other actors as to this plot, or pending plots.  It is my opinion as a former head NJ county prosecutor and now NJ criminal defense lawyer that she will be charged, irrespective of her help, should the reports be accurate.  After charging her cooperation may be helpful to lessen a sentence, but this is such a horrific crime that her help will in my opinion not amount to much by way of lessening her sentence.

And, if the FBI finds out that she was more involved than we know now, then there is no doubt they will aggressively prosecute her.

What are your thoughts about this horrific tragedy?

 

© 2016 Robert (Bob) Bianchi

NJ Supreme Court Certified Criminal Trial Attorney

NJ Criminal Defense Attorney

Frm. head NJ County Prosecutor

National TV Legal Analyst