PITTSBURGH — Federal prosecutors and defense attorneys will begin the process next week of choosing a jury to hear the case against accused Tree of Life synagogue shooter Robert Bowers.
The jury will potentially be tasked with making three decisions in the case against Bowers, who is accused of gunning down 11 congregants from Tree of Life, New Light and Dor Hadash in 2018.
The synagogue, a hulking stone building at the intersection of Wilkins and Shady avenues, housed three congregations — Dor Hadash, New Light and Tree of Life or L'Simcha. The latter congregation owned the building, and its name is written in English and Hebrew on the north wall.
"Tree of Life" became the grim moniker for the massacre, and the 11 Jewish congregants killed there became the faces of the nation's worst antisemitic attack: Richard Gottfried, Joyce Fienberg, Rose Mallinger, Jerry Rabinowitz, David and Cecil Rosenthal, Bernice and Sylvan Simon, Daniel Stein, Melvin Wax, Irving Younger.
The first phase in the trial will be the guilt phase, in which they will determine whether Bowers is guilty of the 63 federal charges against him. If they convict him, the sentencing phase will be in two parts: Determining whether Bowers is eligible for the death penalty and, if so, whether he should be sentenced as such.
Bruce Antkowiak, a former federal prosecutor and public defender who teaches law at St. Vincent College, said that intense scrutiny and questioning by attorneys will make the jury selection process all the more important.
Among the aspects of jury selection in a capital case is finding jurors who will affirm that they will be able to impose the death penalty on the defendant — in this case, Bowers — if they believe prosecutors have shown he's both eligible to be executed and his crimes warrant it.
"You can have a person who would be an absolute perfect juror: fair, able to objectively view evidence, but if you say to them, 'Would you be able to impose the death penalty?' and they say, 'No, I'm sorry, I have certain moral or ethical views that would prevent me from doing that,' — they're off the jury," Antkowiak said.
For the defense, that means striking a balance, as they're already starting off with a group of potential jurors who have declared their willingness to impose the death penalty.
"You have to balance that with, 'OK, in saying that you're willing to give it, are you also saying that you are bound and determined to give it or that you would objectively weigh everything before you would find this to be the necessary verdict," Antkowiak said.
"That's a very difficult aspect of picking a jury from the defense perspective.".
The process is known as death qualifying a jury.
Bowers' attorneys asked U.S. District Judge Robert Colville last year to bar death penalty qualification, arguing that the process would eliminate anyone who opposed capital punishment, like Black people, Hispanics, women, and members of some religious groups. They cited research they said shows capital juries are more likely to be older, white, Protestant and less educated than other criminal juries.
Defense attorneys wrote that excluding anyone opposed to the death penalty but who could otherwise be fair during the guilt phase of the trial would "produce a jury that is biased in favor of conviction and death."
Bowers had previously sought to bar jurors from considering capital punishment when he argued in 2020 that the Federal Death Penalty Act is unconstitutional. U.S. District Judge Donetta Ambrose, who has since retired, disagreed in her 2020 ruling.
Another motion remains hanging regarding the legality of the federal death penalty. Attorneys in the early April filing alleged capital punishment at the federal level is being pursued in an arbitrary manner, and thus it should be taken off the table.
Bowers' attorneys also made the case last year that they should be able to ask potential jurors about their religious affiliations. They argued the one-question survey would ensure that no religious group, in particular Catholics, was improperly excluded from the jury panel.
The motion, filed in late August and denied two months later, cited a 2014 Pew Research study that found about one-third of adults in the Pittsburgh region identified themselves as Catholic. Catholics, attorneys argued, could be disproportionately excluded because of their stance against capital punishment.
During voir dire process — the questioning and examination of potential jurors — both sides can question a potential juror to determine if they have any personal connections to the case or if they'd be unable to be impartial for any reason.
Attorneys on either side can move to challenge, or "strike," a potential juror if it's been shown they are unable to be impartial or unbiased. These are known as for-cause challenges or strikes, and both sides have an unlimited number of strikes when there is sufficient cause.
Each side also gets a predetermined number of peremptory strikes, which can be used to dismiss a juror without giving a reason or showing cause. In federal death penalty cases, each side is entitled to 20 peremptory challenges.
Although such challenges don't require an attorney to show cause for striking a potential juror, they are not without limits. A Batson challenge is when one side objects to the validity of a peremptory strike and alleges the strike is based on race, ethnicity or sex.
Some of the victims' families have supported a deal for life without parole while others have vocalized their strong support for the death penalty. On Friday, Diane and Michele Rosenthal, sisters of victims Cecil and David Rosenthal, held a news conference and again asserted their belief that Bowers should be sentenced to death.
"We owe it to our brothers Cecil and David," Diane Rosenthal said.
Attorneys need a 12-member jury plus at least four alternates in order for the case to proceed.
