Updated on Tuesday, May 23 at 5:07 p.m.:
The judge issued a late-afternoon ruling that he was siding with the prosecution and that the jury would be seated on Thursday. "The Court intends to resolve all issues while the potential jurors are present on May 25, 2023," Judge Robert Colville wrote in brief order.
Original story:
Both prosecution and defense lawyers agreed on rules for how to go about striking jurors in the Pittsburgh synagogue shooting trial, according to a court filing on Tuesday. But there is still one looming disagreement: Defense lawyers for Robert Bowers say they will need at least an extra half-day to bring any structural arguments of racial bias that they detect in the way that prosecutors strike jurors.
The prosecution wants all arguments about racial bias to be made on Thursday, while both the government and defense use their 20 strikes to eliminate jurors. The prosecutors argue that giving the defense this additional time could delay the start of the trial.
The basics of how the lawyers will use peremptory strikes has been established. All 69 potential jurors will be called into court, seated in order and given some basic instructions. Then the jurors will wait in the assembly room, while the government and defense alternate striking jurors one at a time, with prosecutors striking first.
The lawyers must first choose to strike up to 20 jurors among the first 52 jurors. If either side doesn’t use all of their 20 strikes, those jurors will be added to the alternate pool of 17 jurors. Then the lawyers from each side will continue striking jurors from the alternate pool until there are six alternates remaining.
Both the prosecution and defense agree that they can challenge each other’s strikes if they believe there has been some kind of discrimination involved. And if the judge agrees that sufficient evidence has been presented, then the opposing lawyers will have to defend their reason for striking a juror with non-discriminatory reasons.
But the defense argues that it will need additional time after court, until Friday at 10 a.m., to look over the overall pattern of the prosecution’s challenges to see if there is a pattern of discrimination. The defense argues that this will require them to look over more than 4,000 pages of transcripts from jury selection. “Only after strikes are completed and the parties know which jurors the opposing party struck can the parties develop a comparative analysis,” the defense argued.
There are potentially four Black jurors remaining in the pool of 69 and 26 white jurors, according to records kept by TribLive during the selection process. There were several potential Asian and South Asian jurors as well. Because the media could only see the backs of jurors, it wasn’t always possible to confirm a juror’s race or ethnicity.
Prosecutors argued that the defense will already have had a full week to prepare for Thursday and should be able to make any arguments of discrimination in-person. The prosecution wants to wrap up the selection process and empanel the jury after peremptory strikes are finished and no later than the end of the day on Thursday.
“Providing the party making the challenge with an additional twelve hours to review the record, revise their arguments, and bolster their position with a written, final submission is unnecessary and provides that party with an unfair tactical advantage to which the opposing party has no opportunity to respond,” the government argued.
The defense argued that the court should give the prosecution six hours to respond to the defense’s arguments on Friday, with a deadline to respond at 4 p.m. Then the judge could rule on the arguments over the weekend. The defense wants to empanel the jury on Tuesday morning.
The defense said this wouldn’t delay the trial because the court could give the 12 jurors and 6 alternates notice that they had been selected for the jury and should show up for trial on Tuesday morning. The other 51 jurors would be instructed that they could potentially still be chosen for the trial and should await further instruction.
The 18 jurors and alternate jurors will not be told whether they are an alternate until the start of jury deliberations.
