The Pittsburgh synagogue shooter is eligible for the death penalty.
Found guilty on 63 counts, including 22 capital offenses, the convicted killer’s sentence now rests in the hands of the same jury that delivered verdicts for the first two phases of the trial.
In Phase 3 — the sentencing phase — the defense will try to convince that jury that Robert Bowers should receive a sentence of life in prison without the possibility of parole, rather than death.
“They will basically track what they have already previewed in both the guilt and eligibility phase,” said David Harris, a University of Pittsburgh law professor who teaches criminal law and procedure. “They will put in front of the jury evidence about the defendant’s mental health, the health of his brain, diagnoses of mental illness, any evidence about his childhood traumas, difficulties with his parents — basically anything conceivable that might push the jury away from the imposition of the death penalty.”
Much of the defense’s evidence will be familiar to the jurors, as they have already heard expert witnesses testifying that the defendant has schizophrenia and epilepsy. Those conditions, defense lawyers argued, should have prevented him from qualifying for the death penalty.
While those issues have already been examined and rejected by the jury, Harris said, this time jurors have to look at them differently.
“[The defense] gets to present it again in a different and perhaps deeper level, with more evidence for the specific purpose of trying to persuade the jury not to render a death verdict,” he said. “There may not be a big difference to most folks, but we have to keep in mind that this is a very technical, legally mandated process and we have to step through using the evidence in different ways at different times.”
The prosecution will present aggravating evidence in support of the death penalty, including statements from those most affected by the massacre.
These witnesses, Harris said, will explain how their lives have been impacted by the crimes. The Supreme Court, he explained, has said that in capital cases, the victims’ families can testify about the deceased and provide “slice of life” testimony.
“In other words,” he said, “what were their lives like? What did they mean to their family and to their community? Those things can be testified to, concerning the victims of these crimes in the next phase.”
What the prosecution witnesses can’t do, Harris said, is share their opinion of an appropriate penalty.
After the jury has rendered its verdict and has been dismissed by the judge, a sentencing hearing will be held, most likely several months later, Harris explained. At this hearing, the victims and family members will have another opportunity to speak.
The idea of holding a sentencing hearing after a jury delivers its verdict on capital punishment might seem odd, but Harris said it’s an important part of the procedure.
“Remember, he’s also been convicted of 41 other crimes, and the judge will have to give the sentence for those crimes,” he said.
The judge, Harris said, is also responsible for officially pronouncing the sentence.
In the previous two phases of the trial, the jury delivered its verdicts of guilt and eligibility relatively quickly. Harris said the speed of those verdicts indicates the jury easily understood the evidence that supported the contentions of the government.
“I think that is a strong signal about what they are likely to think about the evidence for and against the death penalty that we’re about to see,” he said. “What we know from the eligibility phase is that they had no difficulty at all. A verdict that quickly shows there was really no dispute in that room.”
As in the previous two phases, Harris doesn’t believe the killer will testify. To do so, he said, would open up a cross-examination that would include all of the damaging statements he made to the defense experts who examined him in preparation for the trial.
If the shooter is sentenced to death, Harris said, there most likely will be a protracted period of appeals.
“If he decides he wants to continue his appeals, for whatever purpose, he will have lawyers willing to represent him because there are attorneys who simply believe the death penalty is not right, and regardless of who the defendant is, they will continue to fight,” he said.
The sentencing phase of the trial began Monday, July 17. It is expected to last several weeks.
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.
