Attorneys for accused Tree of Life gunman say they won't be ready for trial before late 2023

Federal prosecutors say the man accused of killing 11 people at the Tree of Life synagogue in Pittsburgh’s Squirrel Hill should go to trial in the fall.

But defense attorneys for the accused gunman, Robert Bowers, told the newly assigned judge in the case Wednesday that they don’t anticipate being ready for trial before late 2023. The mass shooting happened on Oct. 27, 2018.

U.S. District Judge Robert Colville held a video status conference Wednesday as he gets acclimated to the complex death penalty case, which now has more than 700 entries on the court docket.

He asked parties on both sides to make an effort to create a realistic timeline for resolving the case. It’s due on Tuesday.

“I will not be predisposed to granting continuances, nor will I move speedily or precipitously for the sake of appearances,” Colville told the parties. “Accordingly, you are all duly encouraged.”

Bowers, 49, is charged in a 63-count indictment of entering the Tree of Life synagogue on Wilkins Avenue during morning services and opening fire. The synagogue housed the Tree of Life-Or L’Simcha, Dor Hadash and New Light congregations.

Federal prosecutors said Bowers was motivated by antisemitic rhetoric and expressed those thoughts online in the months leading up to the attack. He also spoke out against Jewish people after he was wounded in a shootout that morning with SWAT officers and again while being treated for his injuries.

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Killed in the attack were Joyce Fienberg, Jerry Rabinowitz, David and Cecil Rosenthal, Irving Younger, Dan Stein, Rose Malinger, Richard Gottfried, Bernice and Sylvan Simon, and Mel Wax.

Several family members of the victims observed Wednesday’s video hearing, the first held by Colville. He was appointed to the case at the end of January as former Senior U.S. District Judge Donetta Ambrose was set to retire.

During the hearing, Colville asked the parties if they could outline for him their concerns and a suggested time frame for moving the case forward.

Assistant U.S. Attorney Soo Song suggested that jury selection could begin on Sept. 12, with a starting trial date of Oct. 19. She asked for the court to allow intermittent observation of Jewish holidays that fall within that time frame.

“We recognize there’s work to do before the case can be tried,” she said.

Song told the court that the case should move forward, especially given how long it has already been. She referenced federal law that requires the Department of Justice to respect the rights of victims and avoid unreasonable delay.

“We believe the remaining work to get this case to trial can be accomplished in the next six months,” said First Assistant U.S. Attorney Troy Rivetti.

He noted that the Boston Marathon bombing case, where there was more evidence, was ready for trial within two years.

Supervising Federal Public Defender Elisa Long told Colville that the case is extraordinarily complex — in part because the government has chosen to pursue the death penalty.

The defense had sought an offer that would have allowed Bowers to plead guilty in exchange for a sentence of life in prison with no chance for release. The Department of Justice rejected the offer.

Long said the government has provided evidence in discovery that includes hundreds of hours of police body-camera, surveillance and drone video; 45 different digital devices; considerable forensic evidence; 3-D scans reconstructing the crime scene; and statements and interviews from more than 75 witnesses.

Long said the mitigation investigation required by the defense in a capital case also is extensive.

“The defense has to reach back years, if not generations,” she said. “Our field work often involves conversations with reluctant witnesses.”

Long said that the covid-19 pandemic seriously hampered that work — not only in being able to get out and physically interview people, but also in those witnesses’ reactions.

“What we’ve been finding, people have been adversely affected by covid,” she said. “It has made them unable or unwilling to work with us.”

Long said the prosecution’s proposed trial date is not realistic.

“We will not be even nearly completed in our mitigation investigation at that point,” she said.

Judy Clarke, who specializes in federal death penalty defense work and was appointed to the case in December 2018, agreed.

“We simply are not ready because of what covid has done to our necessary field work,” she said. “We are way behind.”

Clarke told the court that no federal capital cases have been tried since the pandemic began.

Bowers waived his appearance for the proceeding, as he has done for every one since Feb. 11, 2019, including a two-day suppression hearing in October.

Department of Justice special litigation counsel Julia Gegenheimer on Wednesday asked the court to require Bowers’ presence at the next hearing to ensure that he is aware of the rights he is waiving, including his right to a speedy trial, to avoid later claims on appeal.

Long objected, telling Colville that the defense team is aware of their responsibilities on that issue.

The judge did not comment or rule on that request.