This week the real trial begins for Robert Bowers, the man who killed 11 worshipers in a Pittsburgh synagogue on Oct. 27, 2018.

That Mr. Bowers carried out the massacre has never been in question. His lawyers acknowledged this bluntly during the first phase of his federal trial, and on June 16, a jury convicted Mr. Bowers on all of the 63 counts he faced.

Now, in the penalty phase, which begins on Monday, those same jurors will weigh the question that has always been at the core of this prosecution: whether Mr. Bowers should be sentenced to death.

It promises to be very different from the guilt phase, which focused almost exclusively on the carnage that day. The defense asked questions of only a few of the government’s 60 witnesses and called none of its own. .

But lawyers for Mr. Bowers suggested that their main argument — that there are things in Mr. Bowers’s life that make his culpability more complicated than it may seem — was still to come.

“We know there is more than that to the story,” Judy Clarke, one of his lawyers, said in the defense’s opening statement. But, she added: “The evidence about who he is is very limited in this phase of the case.”

The jury will be asked to consider two questions. The first is whether Mr. Bowers, a 50-year-old former truck driver who lived in the Pittsburgh suburbs, is eligible for the death penalty based on the circumstances of the crimes he committed. Those factors include whether he planned the attack and whether he intended to kill his victims. If the jury finds factors that do make him eligible for a death sentence, they will then decide whether he should be executed or spend the rest of his life in prison.

This stage of the trial is expected to last about six weeks. The prosecution will feature extensive testimony about the people who were killed in the attack and the impact of their loss on those around them. Witnesses for the defense will likely testify at length about Mr. Bowers’s troubled background and his mental health.

The defense team has written in filings that Mr. Bowers suffers from “schizophrenia, epilepsy, and structural and functional impairments of the brain,” and that they intended to present evidence about his mental illness in the penalty phase. In May, the judge, Robert J. Colville, allowed the government to conduct its own examination of Mr. Bowers, suggesting that the penalty phase may entail a battle of interpretations over these findings.

Ms. Clarke is one of the country’s most experienced capital defense lawyers and has represented several high-profile defendants, — arguing, mostly successfully, that they should be spared execution. She joined Mr. Bowers’s defense two months after the attack, after the federal public defenders representing him asked the judge to appoint a lawyer with experience in death penalty cases.

Over the years leading up to the trial, the defense lawyers made repeated offers to the government for Mr. Bowers to plead guilty in exchange for a life sentence without the possibility of parole, but federal prosecutors rejected these offers. So the trial went forward, with the defense largely ceding the first phase to the government.

Allowing the prosecution to dominate on the question of guilt was a sensible strategy, said Bruce Antkowiak, a law professor at Saint Vincent College, near Pittsburgh. The awful facts of the attack were clear, he said, and challenging them in that phase would have risked antagonizing the jury.

“You are going to hope that testimony comes and goes as fast as possible so that you can essentially say to the jury, ‘OK, everybody understood that was the case,’” Professor Antkowiak said. “‘Now let’s talk about what’s really at issue in this case, which is the background and the makeup of this individual.’”

Ms. Clarke and other defense attorneys have given indications at trial of what this biography may reveal. She spoke in her opening statements of an isolated, socially awkward man whose family “believed he was more likely to commit suicide than harm others.”

In her closing argument, Elisa Long, a federal public defender representing Mr. Bowers, emphasized that he had not gotten in trouble with the law before the attack. But, she said, in the months leading up to it, he had “spent a tremendous amount of time alone on the internet absorbing all kinds of vile and extremist content.”

But Mr. Bowers is not pursuing an insanity defense, in which the defendant admits to carrying out some criminal act but argues that, due to mental incapacity, he did not fully understand that it was wrong. Insanity defenses are rare, and legislation made such defenses substantially harder to make after John W. Hinckley Jr. was found not guilty by reason of insanity in the 1981 assassination attempt on President Reagan.

“Insanity defenses, I don’t care what kind of case it is, are extremely challenging to succeed with,” said George Kendall, a lawyer who represents people on death row. It would have been particularly difficult in this case, several defense attorneys said, with a defendant who seemed explicit about his hatreds and does not show glaring signs of a debilitating psychosis.

But when it comes to deciding whether someone is deserving of execution, Mr. Kendall said, evidence of serious mental illness can give one or more jurors serious reservations — which can be enough for the defense, since death penalty verdict has to be unanimous.

In 2015, a jury rejected the insanity defense raised by James Holmes, who killed 12 people and injured scores of others in an Aurora, Colo. movie theater, and found him guilty on all charges. The jury then ruled that he had acted with aggravating cruelty and was eligible for a death sentence. But, after a month of testimony about Mr. Holmes’s struggles with mental illness, that same jury was divided on whether he should be executed. He was sentenced to life in prison without the possibility of parole.

“While jurors rejected the notion that Mr. Holmes fit the narrow legal definition of insanity,” his public defenders wrote in a 2016 article in the Denver Law Review, “the experts in the case agreed that Mr. Holmes would not have committed this horrible crime had he not been mentally ill.”

Source: Read Full Article