If the accused Pittsburgh synagogue shooter is found guilty and sentenced to death, it won’t be because of the brutality of his crimes. Nor will it be because of the federal hate crimes with which he’s charged, as those aren’t capital offenses.
Rather, it will be because he was found guilty of obstruction of the free exercise of religion resulting in death — for which he faces 11 separate counts.
Before the jury can decide whether Robert Bowers’ actions were meant to obstruct the free exercise of religious beliefs, though, the government will have to connect the crimes to the Constitution.
Why?
“Congress does not have the general authority to make anything and everything they want to a crime,” explained Bruce Antkowiak, a former federal prosecutor and criminal defense attorney, who has taught law at Duquesne University and Saint Vincent College. “They have to tie whatever crime they are categorizing to some power given to them in the Constitution.”
Where Congress has the most leniency, Antkowiak said, is through Article 1, Section 8, known as the Commerce Clause, which gives the legislative body the ability “to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.”
That comes into play in this case through the weapons used by the defendant. If he used a gun manufactured in another state, and that gun crossed state lines before being used in the crime, then the federal government has jurisdiction.
During the trial, prosecutors have elicited testimony showing that the guns and ammunition used by the defendant were manufactured outside of Pennsylvania.
Next, the prosecutors will have to prove that the defendant intended to obstruct the free exercise of religious beliefs of those inside the building at the time of the massacre. That crime is outlined in Title 18 U.S. Code 247, the Church Arson Protection Act, which became a law in 1996. If the obstruction of the free exercise of religion results in death, the death penalty can be imposed.
While the defendant is also charged with 11 counts of committing a hate crime resulting in death, those crimes do not carry the death penalty as a punishment. The reason, explained David Harris, a professor of law at the University of Pittsburgh, is twofold. First, it is difficult to prove the requisite intent of someone accused of a hate crime; and second, some members of Congress are uncomfortable with the idea of sentencing someone to death for a crime where a free speech argument might be made.
With a hate crime, prosecutors must prove that a person not only intentionally committed the crime but also did so intending to exhibit hate or to intimidate certain protected groups. And, for some in Congress, that’s a bridge too far.
So, to avoid the imposition of the death penalty, the defense team will focus on the religious obstruction counts. In her opening statement, defense attorney Judy Clarke admitted that Bowers killed 11 worshippers while they were in the synagogue on Shabbat. She implied, though, that he did so not because of their religion, but because he believed Jews were enabling immigrants to commit genocide by helping them enter the U.S.
Congregation Dor Hadash, one of the three congregations the defendant attacked, has worked with the Hebrew Immigrant Aid Society, an organization that assists immigrants. Dor Hadash has participated in HIAS’ National Refugee Shabbat, and the defendant commented about that participation on Gab.com, a social media site favored by the far right. Before entering the synagogue on Oct. 27, 2018, he posted to Gab.com: “HIAS likes to bring invaders in that kill our people. I can’t sit by and watch my people get slaughtered. Screw your optics, I’m going in.”
The defendant believed the “unthinkable, nonsensical, irrational thought that by killing Jews, he would attain his goal,” Clarke said.
The government, on the other hand, argued in its opening statement that the defendant intentionally obstructed by force the victims’ free exercise of religious beliefs.
“What he was doing in terms of obstructing,” Harris said, “was the most basic and most direct way of obstructing religious force — using force on these people to kill them as they attempted to worship and gather to worship.”
If the defendant did not intend to obstruct the free exercise of religion, he could have planned his attack to occur somewhere other than a synagogue on Shabbat, Harris said.
As for the defense’s argument that the shooter wanted to kill Jews to stop what he saw as a genocide?
Harris believes that, while the defense isn’t arguing insanity, this is a way to introduce the shooter’s mental state.
“To have arguments on the table about his mental state, in a form that is not an insanity defense, lays the groundwork, foreshadows the argument that you should not execute him,” Harris said.
Antkowiak said this type of defense — that the defendant wasn’t focused on Jews praying in a synagogue during Shabbat as a means to obstruct their free exercise of religion — works better when a case is tried before a judge rather than a jury.
“A judge is in a better position to make what would amount to a very fine legal distinction,” he said. “Where you are trying this case to a group of lay jurors who are seeing the horrific aftermath of this incident, I’m not sure that subtly of a distinction is going to play well.”
While some might argue that supporting immigrants is not a tenet of the Jewish religion, others will maintain that it’s a core principle, demonstrated by the Torah’s instruction, repeated 36 times, to care for the stranger.
Harris said that principle was illustrated last year after the hostage situation at Congregation Beth Israel in Colleyville, Texas. Asked, after the incident, if he would still welcome a stranger who came to the door of his synagogue, the congregation’s rabbi said he would be more careful, but yes, he would do it again.
Attacking Jews who support immigrants, “could be seen as attacking Judaism itself,” Harris said.
There might be additional, more nuanced ways that the prosecutors will try to prove obstruction of religion. For instance, the presidents of New Light and Tree of Life took the stand last week and discussed their congregations’ financial losses connected to the attack. Could this be used as proof that the alleged shooter obstructed the practice of Judaism?
“I would think that this is one of the elements,” Antkowiak said. “It will definitely limit the synagogue’s ability to operate as a viable entity.” In the end, Harris said, the defense’s attempts to chip away at the obstruction of religion charge is less about countering the prosecution’s case, and more “about the longer game of getting into the jury’s mind already in terms of what is the appropriate penalty.”
David Rullo writes for the Pittsburgh Jewish Chronicle. 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.
