It’s hard to miss the Tree of Life synagogue in Squirrel Hill. The heavy stone structure anchors a block full of serene single-family homes. Their lush lawns and budding trees glistened in the unseasonably warm weather that graced Pittsburgh last week.
But dark memories loom from the shooting that killed 11 Jewish worshippers just feet from this busy street corner during Shabbat morning services on Oct. 27, 2018. The victims belonged to three congregations: Dor Hadash, New Light, and Tree of Life / Or L'Simcha. Their names still resonate: Joyce Fienberg, Richard Gottfried, Rose Mallinger, Jerry Rabinowitz, Cecil Rosenthal, David Rosenthal, Bernice Simon, Sylvan Simon, Daniel Stein, Melvin Wax, and Irving Younger.
The attack, in which six more people were wounded, is believed to represent the deadliest assault on Jews in U.S. history.
Robert Bowers, 50, is charged in the attack with more than 60 federal charges, including hate crimes, obstruction of religious belief, and using a firearm during a violent crime. His federal trial is scheduled to begin Monday, April 24, and it could result in a death-penalty sentence.
Anticipating the anguish the trial will surely cause for some locals, leaders in the Jewish community started to prepare last fall. They enlisted University of Pittsburgh law professor David Harris to teach public classes on the logistics of the coming proceeding as well as the underlying legal principles.
“The most common question is … ‘Why are we having a trial to determine guilt or innocence when there was one person involved, we know who it was, we know what he did?'” Harris said of the discussions in his course.
There are two factors at play, he said. First, the government has rebuffed the defendant’s offer to plead guilty in exchange for a life sentence. The U.S. Constitution, therefore, gives the defendant the right to a public trial.
“Everybody gets due process, and that has to go for each and every case, including the cases of the people we might think of as the worst of the worst,” Harris said.
The ultimate arbiters
The trial will take place at the federal courthouse in Downtown Pittsburgh. It is expected to last about three months. Criminal trials usually do not last that long, but capital cases consist of two phases: one to determine whether the defendant is guilty — the guilt phase — and another to determine whether he should be executed — the penalty phase.
A 12-member jury will make these decisions. So when jury selection starts next week, lawyers on both sides will thoroughly question potential panelists. This process, called voir dire, is expected to last three weeks.
“The key point is, regardless of what [prospective jurors have] been exposed to, can they genuinely come into court and just listen to the evidence that is presented before them in court and then render a verdict that is just based on the evidence in court?” said Carmen Ortiz, who served as the U.S. attorney for Massachusetts between 2009 and 2017.
Under her leadership, federal prosecutors obtained a death sentence against the man charged in the Boston Marathon bombing of 2013. The case has since been appealed: The convicted bomber alleges that two jurors lied when questioned by lawyers.
Ortiz, now in private practice, said she had to retry another capital case due to similar accusations in 2011. Gary Lee Sampson had been sentenced to death for killing three people in 2001, but a federal judge ordered a new trial after concluding that one of the jurors had lied about her background during jury selection.
“It was juror misconduct that caused, 10 years later, a judge to find that it was relevant and material how [the juror] answered the questions, and that it impacted [her] ability to be fair and impartial,” Ortiz said.
She noted that prosecutors try to prevent these situations through diligent questioning. But Oakland, California-based trial consultant Lois Heaney said she doubts whether a jury can be truly impartial in high-profile capital cases such as the Pittsburgh synagogue shooting.
She noted that the U.S. Supreme Court has ruled that people who completely oppose the death penalty are automatically excluded from the jury.
“So what happens in a capital trial is [that] you have a jury panel which is skewed in favor of death,” said Heaney, who serves as president and senior litigation consultant for the National Jury Project’s West Coast office.
Courts also must strike potential jurors who would impose the death penalty in all capital cases, but studies show that “death-qualified” panels are biased against capital defendants.
Just the beginning
Consultants like Heaney try nonetheless to help defense attorneys boost their odds partly by formulating questions that can reveal jurors’ biases.
“It's often stuff about someone's background and their childhood, how they grew up, what happens to them — and whether those things matter,” Heaney said. She said she is not involved in the litigation stemming from the synagogue shooting.
With their questions during voir dire, defense attorneys seek to optimize their chances of humanizing their clients so that jurors feel compelled to spare their lives. A defense lawyer in the synagogue shooting case, Judy Clarke, has deployed this strategy with remarkable success for decades, although she came up short in her representation of the Boston Marathon bomber.
"For the defense, one of the issues is [that] the nature of the crime [is] so horrific that … those mitigating factors don't matter to people," Heaney said, referring to circumstances such as past traumas or mental illness, which could lessen a defendant’s culpability.
She said the deck is stacked further against defendants in tragedies such as the synagogue shooting because these cases spark widespread mourning and outrage. When it happens in jurors’ own communities, Heaney said, neighbors tend to take the suffering personally.
So, she said, defense lawyers could renew their push in the days leading up to Bowers’ trial to move the proceeding outside western Pennsylvania. She said consultants likely are combing through juror questionnaires, which hundreds of potential panelists completed last month, for signs of prejudice across the juror pool.
Harris, the Pitt law professor, said such possibilities make trials fluid situations.
“It unfolds in real-time. People say things that you didn't expect. … Sometimes a witness won't show up. … Things happen because it's an actual event and not a scripted program, as much preparation as there is,” he said
Yet, he added, by anticipating these dynamics, trial watchers can prime themselves for what will easily become a prolonged reminder of a painful episode in Pittsburgh.
