PITTSBURGH – One by one over the past two weeks, members of Jewish congregations in Pittsburgh have come to the witness stand in federal court and relived the horror of that October morning, when a gunman used high-powered weapons to kill 11 worshippers and badly injure others.
Police officers have testified about responding to a scene of horrific carnage and immediately coming under fire themselves, some suffering life-altering wounds from a gunman raging against Jews in the deadliest antisemitic attack in U.S. history.
All of this is being entered fastidiously into the record for the benefit of the jurors and alternates in a federal courtroom in Pittsburgh. So are hundreds of court exhibits showing the aftermath of the violent invasion of sacred worship that day in the Tree of Life synagogue building.
A prayer book torn by gunfire. A bullet-damaged glass door. A prayer shawl on a floor, a yarmulke on a stair, left where they had fallen from worshippers during the attack.
And photos of bodies shattered by high-powered weaponry — images so sickening that the court is not making them public.
All this to prove what? Everyone agrees on who the perpetrator was and what he did, though there's some dispute over what he was thinking.
Ultimately, this is all about whether he gets the death penalty.
Defense lawyer Judy Clarke — representing the killer, Robert Bowers — admitted in her opening statement on May 30 that there is “no dispute and there will be no doubt” that her client committed the attack. That he entered a synagogue and “shot every person he saw.”
Clarke herself posed the rhetorical question that the jurors and everyone else might be wondering:
“Why are we here?”
Why go through a trial, anticipated to last three weeks, before getting to a penalty phase that might last six more weeks?
Clarke couldn’t say it out loud to the jurors at this point in the trial, but she is laying the groundwork for preventing Bowers’ execution. Judge Robert Colville had already made clear that any discussion of the death penalty would have to wait until the penalty phase of the trial.
“The only issue in this trial is whether or not the defendant will be sentenced to death,” said University of Pittsburgh law professor David Harris, who has been following the case closely. “That is the only issue. … But I think the way that this impacts every bit of trial strategy, every statement, every tactical move, is sometimes forgotten.”
In fact, during the lengthy screening process for the jurors and alternates, Bowers' defense team barely asked anything about whether the jury candidates could consider an acquittal. The defense focused almost entirely on the penalty phase — whether prospective jurors would even consider a life sentence without parole, rather than execution, in the case of a man charged with hate-motivated killings in a house of worship.
Each side had some success in eliminating potential jurors with inflexible views for or against the death penalty.
The second week of the trial wrapped up Thursday with testimony on topics ranging from DNA samples to the leases of congregations that could no longer worship at Tree of Life. Friday was a regularly scheduled off day.
Clarke has represented some of the nation’s most notorious killers in potential death-penalty cases. They include Boston Marathon bomber Dzhokhar Tsarnaev, who is currently appealing his death sentence, as well as Unabomber Ted Kaczynski and 1996 Olympics bomber Eric Rudolph, both serving life sentences.
Unlike with some of Clarke's previous clients, however, federal prosecutors refused to accept an offer by Bowers’ defense team that he plead guilty in exchange for a life sentence. Most families of the slain worshippers have voiced support for seeking the death penalty, though some family and synagogue members favored a guilty plea in return for a life sentence, in part to spare survivors the ordeal of reliving the attack in court.
And so the trial came — four and a half years after Bowers killed 11 worshippers from the Dor Hadash, New Light and Tree of Life congregations, which all met in the synagogue, on the Sabbath morning of Oct. 27, 2018. Bowers also injured seven people, including five police officers who responded to the scene, investigators said.
To be sure, Clarke did offer something of a defense in her opening statement.
She noted that unlike a straightforward murder charge in a state court, many of the federal charges impute motives. This involves the legal concept of “mens rea,” or intention of wrongdoing, Harris said.
Bowers is accused of 11 counts each of hate crimes resulting in death; the obstruction of the free exercise of religion resulting in death; and the use of a firearm to murder in a crime of violence.
Clarke didn’t address all of the 63 federal charges facing Bowers. But she focused on the hate crimes.
The hate-crimes charges are actually not among the capital offenses. The charges that do carry the death penalty involve the lethal disruption of religious practice and the murderous use of a firearm.
Clarke said rather than killing the victims due to their “actual and perceived religion,” Bowers was acting out of the delusion that by killing Jews, he was saving children from the genocide he believed was being perpetrated as Jews helped immigrants resettle.
Bowers was killing out of the "unthinkable, nonsensical, irrational thought that by killing Jews, he would attain his goal,” Clarke said.
But if that sounds like an insanity defense, it isn’t.
Bowers' lawyers have already given notice that they aren't mounting an insanity defense, though they plans to introduce evidence in the penalty phase that Bowers has schizophrenia, epilepsy and brain impairments. Prosecutors conducted their own mental health evaluation; its results aren't publicly known.
“It is very difficult to mount a successful insanity defense,” Harris said, noting that in legal terms, the concept requires not just proof of mental impairment but of how that affects a suspect's thinking. Juries are typically skeptical of such defense, he said.
“The prosecution must prove beyond a reasonable doubt that he wanted to kill the victims because they were Jews, or in order to prevent them from worshipping,” Harris said. “Clarke is arguing that the prosecution can’t prove those things, because the evidence ... will show that he was irrational — he was killing Jews, but it was to stop the activity of settling refugees, a la the racist and bigoted great replacement theory.”
Clarke has almost no hope of an acquittal, but “it gives her an opportunity to argue, in advance, about the death penalty,” Harris said.
Bowers could have pleaded guilty and gone straight to the penalty phase, as did the Parkland, Florida, school killer, who received a life sentence without parole. Harris said Bowers' defense there may be strategic or legal reasons, or both, for doing otherwise.
Clarke further sought to lay groundwork for sparing Bowers the death sentence in describing him as a socially awkward loner who didn't live on his own until age 44, two years before the attack, and hadn't previously pointed a gun at anyone. She said he took care of relatives with health needs but had few friends and spent a lot of time on his computer, becoming absorbed by the “vile, extremist content” he found there.
The prosecution, meanwhile, is also not mentioning the death penalty at this point. But the evidence it presents — from the firearms used in the killings to the antisemitic ravings of Bowers to the the prayers that were so violently disrupted — is building toward its goal of a guilty verdict on charges that carry the death penalty.
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