For the past two weeks, members of Pittsburgh’s Jewish congregations have come one by one to the stand in federal court to relive the horror of that October morning when a gunman used high-powered weapons to kill 11 believers and seriously injure others. .
Police officers have testified that they responded to a scene of horrific carnage and immediately came under fire themselves, with some suffering life-changing injuries at the hands of a gunman ranting against Jews in the deadliest anti-Semitic attack in US history.
All of this is meticulously recorded for the benefit of jurors and deputies in a Pittsburgh federal courtroom. So do hundreds of court exhibits showing the aftermath of the violent invasion of sacred worship that day at the Tree of Life synagogue building.
A prayer book torn apart by gunfire. A bullet-damaged glass door. A prayer shawl on a floor, a yarmulke on a staircase, left where they had fallen during the attack of worshipers.
And pictures of bodies shattered by powerful weapons – images so sickening that the court won’t make them public.
All this to prove what? Everyone agrees on who the perpetrator was and what he did, although there is disagreement as to what he thought.
Ultimately, what matters is whether he gets the death penalty.
Defense attorney Judy Clarke — representing the killer, Robert Bowers — admitted in her opening statement on May 30 that there is “no dispute and no doubt” that her client committed the attack. That he entered a synagogue and “shot every person he saw.”
Clarke himself posed the rhetorical question that the jurors and everyone else might be wondering:
“Why are we here?”
Why go through a probationary period, expected to last three weeks, before entering a penalty phase that could last another six weeks?
Clarke couldn’t say it out loud to the jurors at this point in the trial, but she’s laying the groundwork to avoid Bowers’ execution. Judge Robert Colville had already made it clear that any discussion of the death penalty should 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 is closely following the case. “That’s the only problem. … But I think the way this affects every trial strategy, every statement, every tactical move is sometimes forgotten.
During the lengthy screening process for the jurors and alternates, Bowers’ defense team barely asked whether the jury candidates could consider an acquittal. The defense focused almost entirely on the sentencing phase — whether potential jurors would even consider a life sentence without parole instead of execution, in the case of a man charged with hate-motivated murders at a house of worship.
Each side had some success in eliminating potential jurors with rigid views for or against the death penalty.
The second week of the trial concluded Thursday with testimony on topics ranging from DNA samples to council leases that could no longer worship at Tree of Life. Friday was a regularly scheduled day off.
Clarke has represented some of the country’s most notorious killers in potential death penalty cases. Among them are Boston Marathon bomber Dzhokhar Tsarnaev, who is currently appealing his death sentence, as well as Unabomber Ted Kaczynski and 1996 Olympics bomber Eric Rudolph, who are both serving life sentences.
However, unlike some of Clarke’s previous clients, federal prosecutors refused to accept an offer from Bowers’ defense team that he plead guilty in exchange for a life sentence. Most of the slain worshipers’ families have expressed support for seeking the death penalty, although some relatives and members of the synagogue favored a guilty plea in exchange for a life sentence, in part to give survivors the ordeal of reliving the death penalty. attack in court.
And so came the trial—four and a half years after Bowers murdered 11 worshipers from the Dor Hadash, New Light, and Tree of Life congregations on the Sabbath morning of October 27, 2018, all of whom gathered in the synagogue. Bowers also injured seven people, including five police officers who arrived at the scene, investigators said.
To be sure, Clarke offered 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 attribute motive. This includes the legal concept of “mens rea,” or intent to commit misconduct, Harris said.
Bowers is charged with 11 counts of hate crimes resulting in death; obstructing the free practice of religion resulting in death; and using a firearm to murder in a violent crime.
Clarke did not address all 63 federal charges Bowers faced. But she focused on the hate crimes.
The accusations of hate crimes are not really capital crimes. The charges, which carry the death penalty, relate to the deadly disruption of religious practice and the murderous use of a firearm.
Clarke said that, rather than kill the victims because of their “actual and perceived religion”, Bowers acted out of the delusion that by killing Jews he was saving children from the genocide he believed was being committed while Jews were helping immigrants to settle. resettle.
Bowers killed out of the “unthinkable, nonsensical, irrational idea that by killing Jews he would achieve his goal,” Clarke said.
But if that sounds like a madness defense, it isn’t.
Bowers’ lawyers have already made it known that they are not pursuing an insanity defense, although they plan to present evidence in the sentencing phase that Bowers has schizophrenia, epilepsy and brain disorders. Prosecutors conducted their own mental health evaluation; the results are not publicly known.
“It’s very difficult to mount a successful insanity defense,” Harris said, noting that in legal terms the concept requires evidence not only of mental disorders, but of how that affects a suspect’s thinking. Juries are typically skeptical of such a defense, he said.
“The prosecution must prove beyond a reasonable doubt that he intended to kill the victims because they were Jews, or to prevent them from worshipping,” Harris said. “Clarke argues that the prosecution cannot prove those things because the evidence … will show that he was irrational – he killed Jews, but it was to stop the activity of settling refugees, a la the racist and bigoted Grand Replacement theory. ”
Clarke has almost no hope of an acquittal, but “it gives her a chance to discuss the death penalty beforehand,” Harris said.
Bowers could have pleaded guilty and gone straight to the punishment stage, as did the Parkland, Florida, school killer, who received a life sentence without parole. Harris said Bowers’ defense may have strategic or legal reasons, or both, for doing otherwise.
Clarke further tried to lay the groundwork to spare Bowers the death sentence by describing him as a socially awkward loner who had only lived by himself at age 44, two years before the attack, and had not previously pointed a gun at anyone. She said he cared for family members with health needs, had few friends and spent a lot of time on his computer, engrossed in the “vicious, extremist content” he found there.
The prosecution also does not mention the death penalty at this time. But the evidence it presents – from the firearms used in the murders to Bowers’ anti-Semitic ravings to the prayers so violently disrupted – builds to its goal of a guilty verdict on charges punishable by death.
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