Judge grants motion to separate sentencing phase in Tree of Life trial

The judge presiding over the Tree of Life mass shooting case ruled Monday that if Robert Bowers is found guilty, the sentencing portion of the case will be held in two separate phases.

The decision by U.S. District Judge Robert J. Colville will require that victim impact testimony be received by the jury only after they hear evidence from the government as to why Bowers is eligible to be put to death in the first place.

Colville said he was allowing the sentencing to be separated “out of an abundance of caution.”

“[W]hile the court is not unsympathetic to the government’s concerns over unnecessary protraction and complication of the proceedings, hardship to witnesses, and delay for victims, the court must also consider and safeguard the fairness of the proceedings in this matter and prevent any potential unfair prejudice to the parties,” Colville wrote in a 14-page opinion.

If prosecutors presented victim impact testimony before the jury determines if Bowers meets requirements for a death sentence, the testimony could affect the jury’s decision, defense attorneys for Bowers argued.

The government is expected to present victim impact testimony about all 11 people who were killed in the Oct. 27, 2018, shooting at the synagogue in Squirrel Hill that housed the Tree of Life-Or L’Simcha, Dor Hadash and New Light congregations.

In addition, testimony is also expected regarding the 27 people who survived, but were injured, including 12 members of law enforcement.

The defense team cited the Federal Death Penalty Act as allowing for the separation of the sentencing phase in a capital case.

However, the U.S. Attorney’s office objected to the defense motion to separate the proceedings, arguing that it would unduly complicate the case and cause jury confusion and delay.

They further claimed that the Federal Death Penalty Act does not require the separation.

While Colville agreed the federal statute doesn’t require it, it does permit it. He cited several other capital prosecutions across the country where courts have granted such a request.

Colville said Bowers’ defense attorneys presented sufficient basis to warrant their request — particularly the prospect of victim impact testimony being potentially prejudicial.

Jury selection in the case is expected to begin in late April.

The first phase of the trial is expected to last several weeks, and, if Bowers is found guilty, a penalty phase will begin a week later.