Defense lawyers on Monday said their expert witnesses will prove that the defendant, Robert Bowers, didn’t act with enough intent to justify consideration of the death penalty in the “eligibility phase” of the Pittsburgh synagogue shooting trial.
Prosecutors, on the other hand, said extensive evidence in the first phase of the trial proved that Bowers — who was convicted 10 days ago on 22 counts that are eligible for a potential death sentence — showed four different kinds of intent.
Prosecutors telegraphed that they wouldn’t need to present much testimony in the second, “eligibility phase” of the trial, in which jurors will decide if the crimes Bowers committed make him eligible for the death penalty. The prosecution rested its case in this phase in mid-afternoon Monday, a day earlier than expected.
When the jury convicted Bowers on June 16, it had already concluded that Bowers showed intent when he committed his crimes. But the court’s instruction allows that the jury can, if it chooses, require the prosecution to prove a higher level of intent in order to consider the death penalty.
According to the court’s instructions, the jury is required to find that, "Mr. Bowers acted with a level of intent sufficient to allow consideration of the death penalty, which may be different than the intent required to convict Mr. Bowers of the offenses.”
The defense said in its opening statement that it would produce a number of psychological and medical experts who will testify that Bowers’ brain was impaired and that he suffered from schizophrenia and epilepsy that caused psychotic and delusional thinking — and those conditions led directly to the attack in 2018.
Michael Burt, the defense attorney who gave the opening statement, showed several diagrams of what a brain looks like. He said the defense experts will testify that several different brain scans — a PET scan, an MRI and an EEG — showed that Bowers’ brain was impaired in ways that are consistent with the psychological diagnosis given. Burt also said Bowers had been institutionalized in the past and had attempted to commit suicide at an early age.
“Hopefully what we're going to present in this phase of the case is going to shed greater light on how [Bowers’] distorted thinking came about,” Burt said. “How did this happen? How did this tragedy happen? How did a man who, evidence in the first phase shows, has no criminal history, decide to pick up weapons and shoot 11 victims?”
The prosecution’s argument
Prosecutors said they would present only a day or two of testimony during this second phase of the trial, and they argued that they have largely proven the two main questions at issue in the first phase of the trial.
They said Bowers’ actions and words show a level of planning and intent that qualify him for consideration for the death penalty: He wrote on social media about his plans; he erased the contents of his computer and phone to cover his tracks; and he took a number of separate actions during the event itself that showed continued intent.
Assistant U.S. Attorney Troy Rivetti, who delivered the prosecution’s opening statement, also said prosecutors plan to cross-examine and rebut the defense’s expert-witness testimony.
There are four different kinds of intent that the prosecution can prove, Rivetti said.
“We only have to prove one,” he said. “We will prove four.”
The prosecution is also required to prove that only one aggravating factor was present during the crime, according to court instructions, but Rivetti said they will prove that four aggravating factors were present:
- That some of the victims were particularly vulnerable, including five elderly people and two people with congenital disabilities
- That Bowers showed substantial planning and premeditation
- That his actions put many others at grave risk of death, including victims who escaped and law enforcement officers
- That there were multiple victims
“[The] killings are so serious, so aggravating that a jury is required to consider whether the appropriate penalty, under the law, is the death penalty,” Rivetti said.
The “eligibility phase” of the trial is expected to take around two weeks.
If the jury finds that Bowers is eligible for a potential death sentence after what is expected to be about a week or two of evidence in the “eligibility phase,” then it would consider additional evidence in the “sentencing phase.”
The defense has said it would spend about two weeks on the sentencing phase presenting additional evidence about Bowers that it hopes would prompt the jury to provide leniency. The prosecution has said it would then present about one week of testimony providing additional evidence of why the crime was especially harmful and heinous.
‘Their comfort place’
Diane Rosenthal, a sister of Cecil and David Rosenthal, who were killed in the attack, was the first witness to testify Monday.
Cecil and David Rosenthal both had Fragile X syndrome, a genetic disorder that causes physical and intellectual disabilities. That made them especially vulnerable, the prosecution said.
Diane told jurors her brothers “functioned at a preschool level;” they could determine how to dress for the weather but struggled with more complex tasks, such as tying their shoes or explaining their feelings.
Cecil was the more social of the two and liked to talk to most people, but especially those he knew well. David was more comfortable with his friends and family. Both were upset by loud noises.
“Loud noise scared them,” Diane said. “They’d panic.”
Diane said her brothers “lived off of routine” and repetition. They went to worship at the Tree of Life Synagogue every Saturday morning, and they often attended Shabbat services on Friday nights as well. Their sister said Cecil and David loved spending time at the synagogue.
“That was their comfort place, their safe place. That’s where they wanted to be,” she said.
The prosecution continued to interview relatives of the victims about the challenges the victims faced as they grew old, as further evidence of their vulnerability. This included infirmities that included problems with eyesight, hearing, mobility and cognition.
Rose Mallinger was 97, and her eldest son said she had several serious falls. Joseph Stein’s son said his dad used to turn on the TV so loud it was difficult to hear when he came over. Joyce Fienberg’s son said it would sometimes take a few seconds or a minute to get his mother’s attention. Melvin Wax’s daughter said she had reached out to the state Department of Transportation to ask if she could get her father’s driver’s license revoked, but she didn’t follow up because her father was killed during the attack.
The prosecution also called additional witnesses to show that additional people could have died during the shooting.
Pittsburgh police officer Jeffrey Garris testified that Bowers shot at officers through the doorway during a shootout. With the volume of gunfire, “it’s amazing I wasn’t hit and more of us were not,” he said.
Then, a day earlier than expected, the prosecution rested its case and adjourned early at around 2:45 p.m.
