Jury selection finally set to start in synagogue massacre federal death penalty trial

After more than four years of acrimonious legal sparring that at times has bordered on the absurd, the federal death penalty trial for the man accused of slaughtering 11 worshippers at the Tree of Life synagogue building in 2018 is finally at hand.

Jury selection starts Monday in USA v. Robert Bowers before U.S. District Judge Robert Colville and is expected to last several weeks.

Prosecutors say Bowers, armed with an assault rifle and filled with hate, rampaged against helpless members of Tree of Life and two other congregations, New Light and Dor Hadash, on Oct. 27, 2018, and then shot it out with the Pittsburgh police SWAT team before officers wounded him.

America has endured hundreds of mass shootings in the years since that day, but the Pittsburgh synagogue incident resonates as the worst attack on Jews in U.S. history.

The federal courthouse on Grant Street has seen its share of major cases since it was built in 1933, including a historic La Cosa Nostra trial and three other federal death penalty prosecutions.

But it’s safe to say this one is a spectacle like none other, with media from around the world descending on Pittsburgh for a trial that could last into July.

The case has been marked by endless delays, many COVID-19-related, and marred by angry spats between defense and prosecution over all manner of issues, from defense lawyer attempts to suppress Bowers’ comments at the scene (they lost) to whether the death penalty violates the U.S. Constitution (it does not).

At one point, the defense team even objected to FBI agents wearing their guns during an evidence review — inside an FBI building. (As prosecutors noted in that one, the bureau requires agents to carry their guns on duty.)

Guilt is not in doubt in this case. The FBI’s evidence is overwhelming and includes Bowers’ own statements after police shot him that “all these Jews have to die.”

The only substantial issue is whether the jury will give him death or let him spend the rest of his life in prison.

While state death penalty cases are relatively common, the federal death penalty is rarely imposed — or had been until Donald Trump took office. The Trump administration carried out 13 executions in the federal death chamber in Terre Haute, Indiana, many in the final weeks of the administration. But prior to that unprecedented spree, Louis Jones Jr. had been the last person executed, in 2003, before a 17-year hiatus.

Now the federal death penalty is again in the spotlight, and Bowers’ lawyers, including federal public defenders and California anti-death penalty attorney Judy Clarke, are doing everything they can to spare him.

They’ve argued for a change of venue, challenged how juries are selected in this 25-county district, raised claims that Bowers is schizophrenic and repeatedly attacked the death penalty and how it is administered.

Initially, the team argued that the Federal Death Penalty Act violates the Constitution. They said it is unreliable, imposed arbitrarily and marked by racial disparity.

U.S. District Judge Donetta Ambrose, who has since retired, rejected those contentions in 2020.

The defense lawyers raised a new challenge this month. This time, they argued that the Justice Department’s pursuit of death against Bowers is arbitrary, since prosecutors aren’t seeking death in similar cases and because the attorney general, Merrick Garland, has expressed “his own reservations about the death penalty and reversed multiple death penalty-related decisions made by the prior administration.”

Garland announced a moratorium on federal executions in 2021 pending a review of DOJ policy.

Bowers’ lawyers noted that Justice is not seeking death in other hate-motivated mass shootings, citing three: the Walmart massacre in El Paso, Texas, in 2019, by Patrick Cruisius; the Poway, California, synagogue attack in 2019 by John Earnest; and a series of nine drug-related murders over several years in St. Louis by Anthony Jordan.

The lawyers also said that under the Biden administration, Justice has withdrawn its notices to seek death in 23 cases and elected not to seek death against 389 defendants who are eligible for it.

On Thursday, the U.S. attorney’s office responded by saying the Justice Department’s decision-making policies in seeking death are not arbitrary but carefully considered on a case-by-case basis that takes into account many factors. The government also said it should not be forced to turn over its rationale for making decisions.

In the mass shooting cases the defense cited, prosecutors elected not to seek death against Earnest and Cruisius and withdrew a notice of intent to seek the death penalty against Jordan.

“Each case offers a single point of comparison: The defendant and Earnest both killed worshipping Jews; the defendant and Jordan both killed multiple victims; and the defendant and Crusius were both motivated by ethnic animus,” the Bowers prosecutors said. “The defendant does not address the myriad distinctions between his case and the other defendants,’ crimes, and prosecutions.”

Prosecutors also objected to the defense argument that the decision not to withdraw its notice to seek death for Bowers is arbitrary because, according to the defense, that decision was made by the Capital Review Committee and not the attorney general.

The defense lawyers are trying to argue that only Garland can make that decision, which suits their purpose because of his moratorium, but the government says the defense has “no ‘right’ for a specific official to decide whether to withdraw a notice of intent to seek the death penalty.”

Prior to the death penalty challenges, one of the main defense gambits was to get Bowers’ statements at the shooting scene and online tossed out as evidence.

Judge Ambrose heard two days of testimony from police in a suppression hearing in October 2021, during which officers said he made antisemitic statements during and after the shootout inside the synagogue.

Key testimony came from a SWAT officer, Clint Thimons, who said that after Bowers had engaged police in two gunfights, he asked Bowers why he had attacked the synagogue.

“He said that he’s ‘had enough, Jews were killing our children,’ he couldn’t take it anymore and ‘all these Jews had to die,’” Thimons said.

Other officers said they heard him make similar comments.

The defense team wanted those statements thrown out, saying police improperly interrogated him at the scene, in an ambulance and in the hospital in violation of his rights under the Fifth and Sixth amendments and the landmark 1966 Miranda case.

Judge Ambrose rejected that argument last year, just before she retired. She said police were within their rights to ask Bowers questions because they were trying to determine if there was a continuing threat in the synagogue or elsewhere, such as a second shooter or booby traps.

In the months since that ruling, the prosecution has said it intends to introduce other evidence of Bowers’ vitriol on Gab.com, on his phone and in his emails to family before the attack.

The government has indicated it will use all of that information to bolster its contention that Bowers was motivated by hatred of Jews. In January 2018, for example, he created a Gab account in which he said Jews are the “children of satan” and espoused white supremacist views in the months leading up to the attack.

In one chat, he posted an image of a body burning in a crematorium and wrote: “Make Ovens 1488(degrees)F Again.” That number, 1488, is white supremacist code, according to prosecutors, with 14 standing for 14 words in the saying, “we must secure the existence of our people and a future for white children” and 88 standing for “Heil Hitler,” because H is the eighth letter of the alphabet.

On Gab, Bowers said Jews were to blame for white disempowerment because they support refugees. He agreed with other hate-spewing commentators on Gab that Jews had sponsored a caravan of Central American migrants seeking asylum in the U.S. He reposted opinions of other supremacists about the caravan heading for the border and saying a truck hauling the migrants had a Star of David on it, bolstering the idea that Jews were behind it.

The government said it will also use other Bowers’ comments directed at the Hebrew Immigrant Aid Society, known as HIAS. Two weeks before the Pittsburgh synagogue attack, he posted a screenshot on Gab of an HIAS webpage that announced a National Refugee Shabbat and a link to Jewish congregations hosting the event. One was Dor Hadash, which worshipped in the Tree of Life building.

“Why hello there HIAS! You like to bring in hostile invaders to dwell among us? We appreciate the list of friends you have provided,” Bowers wrote.

Just before the massacre on Oct. 27, he posted on his page that “HIAS likes to bring invaders in that kill our people. I can’t sit by and watch my people get slaughtered. Screw your optics, I’m going in.”

After the killings, the FBI recovered Bowers’ phone, which agents said contained images of his guns. There was also a screenshot of a video of Jared Kushner, Trump’s Jewish son-in-law, speaking at the dedication of the U.S embassy in Jerusalem. The phone also contained images of Bowers making an OK hand sign that the government says is a white power symbol.

Prosecutors have said they will also introduce evidence showing that Bowers became increasingly focused on conspiracy theories over the years, embracing QAnon and the Unite the Right rally in Charlottesville, Virginia.

The government said it will introduce testimony from family and friends showing how Bowers’ animus developed over time.

In the early 2000s, prosecutors said Bowers lived above a bakery in Dormont and made statements critical of the government and the United Nations. Co-workers said he kept a gun near his door to protect himself against the government.

He also disparaged Black people and Jews, they said.

Prosecutors said they want to present all of Bowers’ statements to tell the full story of the crime — and their theory of how an unremarkable 50-year-old Pittsburgh truck driver joined the growing ranks of America’s mass killers.

This story is part of ongoing coverage of the Pittsburgh synagogue shooting trial by the Pittsburgh Jewish Chronicle and the Pittsburgh Union Progress in a collaboration supported by funding from the Pittsburgh Media Partnership.