As synagogue massacre trial looms, feds object to latest defense attempt to have federal death penalty tossed

With jury selection set to begin next week, federal prosecutors on Thursday rebuffed a renewed effort by lawyers representing accused synagogue shooter Robert Bowers to block the government from seeking the death penalty.

The government said the Department of Justice’s decision-making policies in seeking death are not “arbitrary,” as the defense team argued in a motion earlier this month, nor should the government be required to turn over its rationale for making the decision to seek death.

“The Department of Justice Capital Case Review Process, though it does not vest individuals with rights, also prescribes a rational and consistent deliberative process to identify cases for capital prosecution,” prosecutors said. “The court should therefore deny the defendant’s motion to dismiss the NOI [notice of intent to seek death] and for unprecedented and unjustified discovery into the Department’s decision-making process.”

Bowers is accused of slaughtering 11 worshippers at the Tree of Life synagogue, where three congregations — Tree of Life*Or L’Simcha, New Light and Dor Hadash — were holding services on Oct. 27, 2018. The government says he did it because he hates Jews. The trial is set to start with jury selection on Monday morning before U.S. District Judge Robert Colville.

The defense had argued that DOJ’s March decision not to withdraw its notice of intent to seek the death penalty is arbitrary because prosecutors aren’t seeking death in similar cases and because the attorney general, Merrick Garland, “has expressed reservations about the death penalty and reversed death penalty related decisions made by the prior administration.”

Garland announced a moratorium on federal executions in 2021 pending a review of DOJ policy.

Bowers’ lawyers had noted that Justice is not seeking death in other hate-motivated mass shootings, such as the 2019 massacre of 23 at a Walmart in El Paso, Texas. The shooter, a white man, said he was defending his country from a “Hispanic invasion of Texas.”

The lawyers also said that under the Biden administration, Justice has withdrawn its notices to seek death in 23 cases and elected not to seek death against hundreds of defendants who are eligible for it.

The government said the existence of “allegedly similar cases” that were treated differently doesn’t render the death penalty arbitrary. In other words, government lawyers argued, every case is different.

The capital case review process involves “consideration of multiple factors during the initial decision to seek the death penalty and in any decision whether to withdraw the [notice],” prosecutors said. “Given the number of variables present in every criminal prosecution, attempting to establish arbitrary action through general case comparisons is a futile endeavor.”

In addition to Patrick Cruisius, the El Paso shooter, the defense mentioned John Earnest, who murdered one person and injured three others at a synagogue in California in 2019, and Anthony Jordan, who killed nine people across several years in St. Louis during his involvement in a drug ring.

DOJ declined to seek death against Earnest and Cruisius and withdrew its notice of intent against Jordan.

“Each case offers a single point of comparison: the defendant and Earnest both killed worshipping Jews; the defendant and Jordan both killed multiple victims; and the defendant and Crusius were both motivated by ethnic animus,” prosecutors said. “The defendant does not address the myriad distinctions between his case and the other defendants,’ crimes, and prosecutions.”

Prosecutors also objected to the defense argument that the decision not to withdraw the notice is arbitrary because the lawyers believe the decision was made by the Capital Review Committee and not the attorney general.

The government argued that Bowers “has no ‘right’ for a specific official to decide whether to withdraw a notice of intent to seek the death penalty.”

The prosecution team noted that the decision to seek death was ultimately authorized by two attorneys general, Bill Barr under President Donald Trump and then Garland under President Joe Biden.

The defense had also sent a letter to the U.S. attorney that outlined defense experts’ determination that Bowers suffers from schizophrenia and epilepsy.

The Justice Department said that after the defense request for a withdrawal of the notice of intent, prosecutors asked that a government expert be allowed to evaluate Bowers to determine the “accuracy of his assertions of mental illness.”

Prosecutors said the defense declined the evaluation.

“He now complains that the request to examine him constituted an inappropriate use of the protocol process that somehow invalidates its conclusion that he should continue to face capital punishment,” prosecutors said.

The Bowers trial is expected to last into July. He is the fourth defendant in the history of the Western District of Pennsylvania to face the federal death penalty. None of the others was executed.