The judge in the Tree of Life massacre trial says he won’t hold a hearing on a defense request to limit victim impact statements during the penalty phase of the ongoing trial of Robert Bowers.
U.S. District Judge Robert Colville on Tuesday rejected the defense team’s motion for a hearing or to make the government provide written statements describing the testimony of witnesses when the trial reaches that stage.
Instead, he said, he’ll carefully evaluate the impact statements to make sure they comport with the law and the precedent set in other cases, such as that of Dylann Roof, a white racist convicted of murdering nine Black worshippers at a South Carolina church in 2015.
Essentially, he said, he’ll allow some testimony from victims’ families and friends but not too much and he’ll permit some testimony about the impact of Bowers’ attack on the religious community, as in the Roof case.
Defense lawyers had asked for the hearing and the limits because they are afraid that too much emotional testimony will unduly influence the jury. The defense team is trying to spare Bowers the death penalty while the government wants to execute him for the killing of 11 worshippers from three congregations at the Tree of Life synagogue building on Oct. 27, 2018.
Colville said that victim impact evidence in capital cases requires him to “engage in line-drawing to address both the government’s right to introduce such evidence and defendant’s rights under the Constitution and the FDPA (Federal Death Penalty Act).”
He said he’ll let witnesses describe the life “which the defendant chose to extinguish, should a guilty verdict be returned on a capital offense, or demonstrating loss to those close to the victims and the targeted community at issue in this case which has resulted from the crimes in question.”
But he said the witnesses may not give their opinions about the crime, about Bowers or about the appropriate sentence.
Colville said he also agrees with other courts about how to handle photos or videos of victims, generally allowing a limited number of images but not, for example, long montages of someone’s entire life set to music.
He said he’ll allow a “reasonable” number of photos or short videos of victims at or near the age of their deaths as well as a “reasonable” amount of evidence such as family heirlooms or special artifacts. If the defense lawyers don’t like it, they can object at that time, he said.
The lawyers had also asked the judge to block testimony about when someone found out their relative was killed in the shooting or details about their last contact with a victim, but the judge said he won’t do that.
Colville said there’s “no merit” to the defense contention that those kinds of details offer “no factual information” about the impact of the loss and only serve to stir emotions.
“Such information is clearly probative of the harm alleged in this case,” he said.
The trial is in its 10th day, with the prosecution on Monday and today presenting extensive examples of Bowers’ hate-filled rantings against Jews on Gab.com in the months leading up to the attack.
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.
