Defense in synagogue massacre case asks for hearing to limit impact testimony

The defense in the Pittsburgh synagogue massacre trial has asked the judge to limit the scope of victim impact statements when the case reaches the penalty phase because the lawyers say long, emotional testimony will unduly influence the jury.

As jury selection in USA v. Robert Bowers enters the third day with no jurors yet seated, the defense team has requested a hearing on how much the jury should hear about the lives of each victim.

“Especially pertinent in a case like this is that, even if individual pieces of evidence may not unduly inflame jurors’ emotions, if many witnesses are permitted to testify at length and in great detail the total volume of information may overwhelm the jury and cause undue prejudice,” the defense team said.

Bowers, 50, is accused of killing 11 worshippers on Oct. 27, 2018, and wounding other congregants as well as police officers, at the Tree of Life synagogue building in Squirrel Hill. His motive was hatred of Jews, federal prosecutors say. The Justice Department is seeking death. Bowers and his lawyers want life in prison.

The Federal Death Penalty Act allows victim impact evidence, but Bowers’ legal team says it should be limited because of its “inherently and potentially overwhelming nature.”

The lawyers want U.S. District Judge Robert Colville to hold a hearing on admissibility before the trial reaches the penalty phase.

The team comprises public defenders Michael Novara, Elisa Long and Ashwin Cattamanchi and three lawyers from California who specialize in death penalty defense: Judy Clarke, Matthew Rubenstein and Michael Burt.

They said that the government has indicated it will present evidence of the impact of the crime on the families of those killed and on the synagogue during the guilt and penalty phases.

But at the penalty phase, they said, the government has indicated it will present more than the “quick glimpse” of the victims’ lives that is permissible under the law.

Witnesses will talk about each victim’s personality and life history and the impact of their deaths on friends, associates and co-workers. The lawyers said the government also plans to introduce items such as photos, family heirlooms, memorial service programs and the like that the lawyers say will take many days and “completely dominate and overwhelm the trial to the point that jurors will be unable to attend to anything else.”

The defense said to proceed without a hearing on what’s admissible runs the risk of inadmissible evidence being presented, resulting in a possible mistrial.

The lawyers said other courts have granted such hearings and Colville should too, especially since there are so many victims. Otherwise, they said, Colville might have to terminate the government presentation in the middle of testimony and deprive some families from being heard.

Bowers’ team said victim impact statements should be limited in quantity and focused on the victim’s life around the time of the killings and “not a complete description of him or her from early childhood on up.”

The lawyers also argued that the government should not be allowed to present testimony about the impact of a victim’s death on the larger community, saying the evidence should be limited to a brief description of the impact on family members “free from inflammatory statements and from purely emotional pleas.”

In particular, the defense said family members should not be allowed to describe how and when they learned of the massacre or their last contacts with the victims because such testimony is “obviously intensely emotional.”

The lawyers are also asking the judge to disallow the injured survivors from talking about how the shooting impacted them psychologically, financially or emotionally. The survivors will testify about their injuries during the guilt phase, they said, and that’s all they should be allowed to discuss.

Jury selection began in the case on Monday, and the parties have questioned 35 potential jurors over two days.

Bowers’ guilt is not in question. The FBI’s evidence is overwhelming.

The only issue is whether he will be executed in the federal death chamber in Terre Haute, Indiana.

The questions have focused on potential jurors’ attitudes about the death penalty and whether they would be able to honestly listen to arguments on both sides before making a decision.

Jury selection will continue this week and could take most of May. The trial is expected to last into July.

This story is part of ongoing coverage of the Pittsburgh synagogue shooting trial by the Pittsburgh Jewish Chronicle and the Pittsburgh Union Progress in a collaboration supported by funding from the Pittsburgh Media Partnership.