Attorneys for accused Tree of Life shooter argue against jury death penalty qualification

Attorneys for accused Tree of Life synagogue shooter Robert Bowers on Thursday made another run at sparing him the possibility of the death penalty, this time arguing that qualifying jurors to consider death will create a jury that is inherently biased toward conviction and capital punishment.

In the 80-page motion, attorneys for Bowers argued that qualifying the jury for the death penalty — that is, excluding anyone whose opposition to capital punishment would stop them from considering such a sentence — will end up striking jurors who are Black or Hispanic, women, and part of religions that oppose the death penalty.

The results, attorneys said, are capital juries that are more likely to be older, white Protestant and less educated than juries in other types of criminal cases.

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Attorneys cite multiple studies they say back up their argument, including several that conclude that white people are more likely to favor the death penalty than Black people and less likely to be receptive to mitigating evidence.

“The results of the research are relevant to understanding the significance of the risk that if Mr. Bowers’ jury is death qualified,” attorneys wrote, “racial discrimination will improperly influence the outcome of the trial.”

Another study cited in the argument concluded that “death-qualified jurors are partial to the prosecution on the issue of guilt or innocence” and “a jury consisting only of jurors who have no scruples against the death penalty is likely to be more prosecution prone than a jury on which objectors to the death penalty sit.”

Case law, attorneys argued, does not disqualify a juror who has indicated a general objection to capital punishment, rather jurors should be struck only if they are clear that they would never vote for the death penalty or could not impartially decide on guilt or innocence because of their death penalty views.

In other types of criminal trials, the motion argues, there is a “firewall” separating the jurors from sentencing considerations: “(In other criminal trials) jurors are not informed of the sentence and instructed not to consider the sentencing consequences of their verdicts.”

A death qualification, attorneys said, means the jurors will have to consider such a sentence and thus be biased in favor of it. They said death qualifying the jury will unfairly influence their decision not just in the sentencing phase of the trial, but the guilt phase, too.

“And death qualification renders certain jurors incompetent to make guilt phase decisions, when there is no evidence that their guilt phase verdict would have been compromised,” they wrote.

Federal prosecutors now must respond to the defense motion.

The defense team has tried multiple times to get the death penalty taken off the table for Bowers, who is accused of storming a Squirrel Hill synagogue in 2018, killing 11 and wounding more than a half-dozen others, including several police officers.

Defense attorneys previously offered their client’s guilty plea in exchange for life in prison, an offer rejected by prosecutors. Later that year, they argued the death penalty unconstitutional, which was rejected by then-U.S. District Judge Donetta Ambrose, who has since retired.

U.S. District Judge Robert Colville, who took over the case upon Ambrose’s retirement, said last month he anticipates a trial in 2023.