Defense requests 2 phases of sentencing if Tree of Life suspect is found guilty

Attorneys for the man charged in connection with the killings of 11 people at the Tree of Life synagogue in Squirrel Hill believe that his sentencing proceeding should be separated into two phases so that jurors in the potential death-penalty case are not improperly influenced by victim impact testimony.

The defense team for Robert Bowers filed a motion to separate the proceedings on Nov. 30.

The government is expected to present victim impact testimony relative to all 11 deceased victims, as well as from 27 surviving victims who were injured — including 12 law enforcement personnel.

“The jury should not be exposed to this powerful evidence prior to deciding whether Mr. Bowers is eligible for the death penalty in the first instance,” the defense wrote in a court filing. They called the evidence “emotionally charged,” “extremely prejudicial, confusing and misleading.”

The government objects to the defense request, which they said is exceedingly rare.

“The defendant’s speculative allegations of unfair prejudice are insufficient to justify the drastic and disruptive remedy he seeks, especially given the substantial risks of jury confusion and delay attendant to bifurcation of the penalty phase.”

U.S. District Judge Robert J. Colville has not yet ruled on the motion.

Bowers, 50, faces 63 counts when his trial in federal court is scheduled to begin in April. He is accused of entering the synagogue, which housed the Tree of Life-Or L’Simcha, Dor Hadash and New Light congregations, on Oct. 27, 2018, with four guns and opening fire.

Eleven people — Joyce Fienberg, Richard Gottfried, Rose Mallinger, Daniel Stein, Jerry Rabinowitz, David Rosenthal, Cecil Rosenthal, Bernice Simon, Sylvan Simon, Melvin Wax and Irving Younger — were killed.

Related:

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The government filed notice of intent to seek the death penalty 10 months later.

To receive a sentence a death, the prosecution must prove the existence of at least one aggravating factor beyond a reasonable doubt. The jury must then weigh that against any mitigating factors offered by the defense — which must only be proved by the lower burden of a preponderance of the evidence. If the aggravating factor(s) outweighs the mitigation, the jurors can then deliberate whether capital punishment is appropriate. They must be unanimous to return a sentence of death.

In this case, the government alleged several aggravating factors: that Bowers’ actions knowingly created a grave risk of death to one or more people, including responding public safety personnel; that the act required substantial planning and premeditation; that Bowers targeted vulnerable victims; that the act involved multiple killings; that the killings were motivated by religious animus; and that he targeted people attending a synagogue.

The trial will begin with a guilt phase, where jurors will hear testimony about the alleged crimes committed. If a guilty verdict is returned on the death-eligible charges — including obstruction of free exercise of religious beliefs resulting in death — the case would then move into a penalty phase.

But in the Tree of Life trial, the defense is asking to split sentencing into two distinct phases.

The first would be to determine if Bowers is eligible for the death penalty — whether the government proves the elements required for capital punishment.

The second would be when the jurors hear evidence related to aggravating and mitigating factors.

Under the defense proposal, victim impact testimony would not be permitted until the second part.

“Without [separation] to isolate the determination of death eligibility, the proceedings combine proof of guilt with the determination of punishment,” they wrote.

The victim impact evidence for those who died is likely to include their personal characteristics and the impact their deaths had on their families and community. For the surviving victims, it will likely include information about physical and emotional injuries; permanent disabilities and grievous economic hardship.

The government wrote in their response that dividing the sentencing proceeding would unduly complicate it.

“Bifurcation wastes time, creates unnecessary repetition in the presentation of evidence, and potentially requires testimony from the same witnesses multiple times,” the government wrote. “The complexities of such proceedings risk confusing the jury, hardship to witnesses, needless delay for the victims and further complication of already complex and lengthy proceedings.”

Further, the government said, much of the evidence necessary to show that Bowers is eligible for the death penalty will have been presented during the guilt phase of the trial.

Bruce Antkowiak, a former federal prosecutor and law professor at Saint Vincent College, said the defense request is somewhat unusual, although he understands why it was made.

“Victim impact evidence is always controversial because it has such a highly emotional edge,” he said.

But, it is also important and relevant, Antkowiak continued.

“The jury in a death penalty case really adopts the role of a sentencing judge,” he said. “The judgment on the death penalty is really a moral decision the jury is called upon to reach.”

A judge at sentencing must consider all of the facts surrounding a crime, the impact on the victim and the defendant’s background and characteristics, he said. A death penalty jury must do the same.

“The question is putting it in the right context,” Antkowiak said. “What you can’t do is allow the victim impact evidence to substitute for the aggravating circumstances.”

Typically, the trial judge will instruct the jurors on how they are to evaluate the evidence they receive — including separating out the victim impact evidence.

“These are people from all walks of life, they respect the judge, but are they really able to put that out of their minds?” Antkowiak asked. ”I don’t know.”