To no one’s surprise, the judge overseeing the capital trial of the man accused of massacring Jews at the Tree of Life synagogue building has rejected another attempt by the defense to get the death penalty tossed.
U.S. District Judge Robert Colville on Tuesday denied a motion by Robert Bowers’ lawyers to halt the prosecution from seeking death based in part on their theory that the decision to seek capital punishment is “arbitrary.”
Colville said that the defense “fails entirely to establish a basis upon which the Court could conclude that the Government has arbitrarily sought the death penalty in this case.”
In their motion last month, the defense lawyers accused the government of acting arbitrarily because the Justice Department did not seek death in cases the lawyers said were similar to this one.
Colville said the defense cannot show “any evidence of, or advance any argument regarding, discriminatory intent on the part of the prosecutors in this case.”
The defense team had argued that the Justice Department didn’t seek death against Patrick Cruisius, who killed 23 Hispanic people at a Texas Walmart. His motive was to stop a “Hispanic invasion” of Texas.
They also cited John Earnest, who killed one and injured three at a California synagogue, and Anthony Jordan, who killed nine people in St. Louis as part of a drug trafficking operation.
The Justice Department declined to seek death against Earnest and Cruisius and withdrew its notice of intent against Jordan.
The Bowers prosecutors said that the defense has drawn simplistic comparisons but didn’t address the distinctions between this defendant and those others or their crimes.
Colville agreed, saying the defense’s attempt to “analogize his case to others based on the number of victims or the motive for the murders involves a gross over-simplification of the variables at hand.”
Colville also noted that the defense team didn’t mention the case of Dylann Roof, who killed nine in a racially motivated attack on an African-American church in South Carolina. In that case, the government sought the death penalty and the jury imposed it.
The lawyers had also argued that the Justice Department’s decision in March not to withdraw its notice of intent to seek death is arbitrary because Attorney General Merrick
Garland has expressed reservations about the death penalty and reversed decisions made under the Trump administration.
The lawyers argued that Garland was not involved in the Bowers decision. They think he should have been, which obviously favors their position since he declared a moratorium on the death penalty in 2021 pending a review of DOJ policy.
The government said it doesn’t matter who made the decision.
Colville agreed.
In citing the Justice Department manual, he said that the policy on whether to pursue the death penalty rests with the “attorney for the government,” but it doesn’t discuss any specific attorney.
Colville said he rejects any assertion by the defense team that the notice of intent should be dismissed because Garland wasn’t involved.
Bowers is accused of slaughtering 11 worshippers at the Tree of Life synagogue building on Oct. 27, 2018. The government says he did it because he hates Jews. The trial began April 24 with jury selection, which is expected to last several weeks.
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.
Torsten covers the courts for the Pittsburgh Post-Gazette, but he's currently on strike. Reach him at jtorsteno@gmail.com.
