One by one over the past two weeks, members of Jewish congregations in Pittsburgh have taken the witness stand in federal court and relived the horror of that October morning, when a gunman used weapons of great power to kill 11 worshipers and seriously injure others.
Police testify responding to a scene of horrific carnage and immediately coming under fire themselves, with some suffering fatal wounds from a gunman raging against Jews in the world’s deadliest anti-Semitic attack history of the United States.
All of this is meticulously recorded on record for the benefit of jurors and alternates in a federal courtroom in Pittsburgh. So are hundreds of court exhibits showing the aftermath of the violent invasion of holy worship that day into 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 fell from worshipers during the attack.
And pictures of bodies shattered by high-powered weapons — images so sickening the court won’t release them.
All this to prove what? Everyone agrees on who the attacker was and what he did, although there is some dispute over what he thought.
Ultimately it comes down to whether he gets the death penalty.
Defense attorney Judy Clarke – representing the killer, Robert Bowers – admitted in her May 30 opening statement that there was “no dispute and there will be no doubt” that her client had committed the crime. ‘offensive. That he entered a synagogue and “shot everyone he saw”.
Clarke herself posed the rhetorical question that jurors and everyone else might ask:
“Why are we here?”
Why go through a trial, scheduled to last three weeks, before arriving at a sanction phase which could last another six weeks?
Clarke couldn’t tell the jurors out loud at this point in the trial, but she’s setting the stage to prevent Bowers’ execution. Judge Robert Colville had previously clarified that any discussion of the death penalty should wait until the criminal phase of the trial.
“The only question in this trial is whether or not the defendant will be sentenced to death,” said David Harris, a law professor at the University of Pittsburgh, who is following the case closely. “That’s the only problem. … But I think how it affects every element of the trial strategy, every statement, every tactical move, is sometimes overlooked.
In fact, during the lengthy process of selecting jurors and alternates, Bowers’ defense team barely asked if 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, rather than execution, in the case of a man accused of hate-motivated murders in a place of worship.
Each side has successfully weeded out potential jurors with adamant opinions for or against the death penalty.
The second week of the trial ended Thursday with testimony on topics ranging from DNA samples to leases from congregations who could no longer worship at Tree of Life. Friday was a regular day off.
Clarke has represented some of the nation’s most notorious killers in potential death penalty cases. They include Boston Marathon suicide bomber Dzhokhar Tsarnaev, who is currently appealing his death sentence, as well as Unabomber Ted Kaczynski and 1996 Olympics suicide bomber Eric Rudolph, both serving life sentences.
Unlike some of Clarke’s previous clients, however, federal prosecutors refused to accept an offer from Bowers’ defense team that he plead guilty in exchange for a life sentence. Most families of worshipers slain expressed support for the death penalty, although some family and synagogue members preferred a guilty plea in exchange for a life sentence, in part to spare survivors the death penalty. ordeal of reliving the attack in court.
And that’s how the trial came about – four and a half years after Bowers killed 11 worshipers from the Dor Hadash, New Light and Tree of Life congregations, all of whom gathered in the synagogue on Sabbath morning October 27 2018. Bowers also injured seven people, including five police officers who responded to the scene, investigators said.
Granted, Clarke offered some sort of defense in his opening statement.
She noted that unlike a simple murder charge in state court, many federal charges implicate motives. This involves the legal concept of “mens rea” or intent to commit wrongdoing, Harris said.
Bowers is charged with 11 counts each of hate crimes resulting in death; obstruction of the free exercise of religion resulting in death; and the use of a firearm to murder in a crime of violence.
Clarke did not address all of the 63 federal charges facing Bowers. But she focused on hate crimes.
Hate crime charges are not actually capital offences. Charges carrying the death penalty relate to fatal disruption of religious practice and lethal use of a firearm.
Clarke said that instead of killing the victims because of their “real and perceived religion”, Bowers was acting under the delusion that by killing Jews he was saving children from the genocide he believed was being perpetrated while the Jews helped immigrants resettle.
Bowers was killing because of “the unthinkable, preposterous and irrational thought that by killing Jews he would accomplish his goal,” Clarke said.
But if that sounds like an insanity defense, it’s not.
Bowers’ lawyers have already made it known that they are not mounting an insanity defense, although they plan to introduce evidence in the penalty phase that Bowers suffers from schizophrenia, epilepsy and brain impairments. Prosecutors conducted their own mental health assessment; its results are not known to the public.
“It’s very difficult to mount a successful insanity defense,” Harris said, noting that in legal terms, the concept requires not only proof of mental impairment, but how it affects a suspect’s thinking. Juries are generally skeptical of such a defense, he said.
“The prosecution must prove beyond a reasonable doubt that they intended to kill the victims because they were Jewish or to prevent them from practicing their faith,” Harris said. “Clarke argues that the prosecution cannot prove these things, because the evidence … will show that he was irrational – he was killing Jews, but it was to stop refugee settlement activity, at the way of the great racists and bigots replacement theory.
Clarke has almost no hope of an acquittal, but “it gives him the opportunity to discuss, in advance, the death penalty,” Harris said.
Bowers could have pleaded guilty and gone straight to the sentencing phase, just like the hitman from Parkland, Florida, who was sentenced to life without parole. Harris said in Bowers’ defense, there might be strategic or legal reasons, or both, to do otherwise.
Clarke further sought to lay the groundwork to spare Bowers the death penalty by portraying him as a socially awkward loner who did not live alone until age 44, two years before the attack, and n had never pointed a gun at anyone. She said he cared for parents with health needs but had few friends and spent a lot of time on his computer, engrossed in the “despicable and extremist content” he found there.
The prosecution, meanwhile, does not mention the death penalty at this point either. But the evidence he presents — from the guns used in the murders to the anti-Semitic ramblings of Bowers to the prayers that were so violently interrupted — is moving closer to his goal of a guilty verdict on charges subject to the death sentence.
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