Pittsburgh synagogue shooting case turns to 'most important decision'

It took a jury less than two hours last week to decide that Robert Bowers had the intent to kill.

He plotted and planned.

He practiced.

When it was over, he bragged about it.

Now, that same jury must decide whether he pays with his life.

“The other two decisions were foregone,” said former federal prosecutor Nathan Williams. “Guilt was clear. And they argued eligibility [for the death penalty] vigorously, but the decision was never really in doubt.”

Now, Williams said, comes the most important decision in the case.

Robert Bowers, 50, of Baldwin was found guilty of killing 11 members of the Tree of Life-Or L’Simcha, Dor Hadash and New Light congregations who were worshiping at the synagogue Oct. 27, 2018.

Killed were Rose Mallinger, 97; Bernice Simon, 84, and her husband, Sylvan Simon, 86; brothers David Rosenthal, 54, and Cecil Rosenthal, 59; Dan Stein, 71; Irving Younger, 69; Dr. Jerry Rabinowitz, 66; Joyce Fienberg, 75; Melvin Wax, 87; and Richard Gottfried, 65.

The final phase of the trial — sentence selection — begins Monday.

Williams said it will likely be the most difficult phase of the case.

“Victim impact will be worse than the guilt phase,” he said. “It’s a different kind of bad — hearing what people lost, how they found out.

The government estimated it will have about 2-1/2 days of testimony, while the defense estimated five to seven days of mitigation evidence.

For the prosecution to obtain capital punishment, it must convince the jury unanimously and beyond a reasonable doubt that the aggravating factors it proves outweigh any mitigating evidence individual jurors find by the lower standard of preponderance of the evidence.

During jury selection, the defense spoke broadly about mitigation, telling prospective jurors that it can include something as simple as a defendant’s mother loves him or that the person is well-behaved in prison.

But during the eligibility phase of the trial, it was clear the defense was planting the seed of mitigation early. Bowers’ attorneys admitted medical and hospitalization records and psychological testing evidence showing their client had a troubled childhood and struggled with his mental health.

They claim he has schizophrenia.

The government’s expert psychiatrist who evaluated the defendant disagreed, saying he has schizoid personality disorder, which is on the same spectrum but does not have a pathological cause. Instead, it is based on a maladaptive approach to life circumstances.

The mental health evidence presented by the defense was not enough to convince jurors that the defendant could not form the intent necessary to be eligible for death.

Whether it’s enough to convince them he should serve the rest of his life in prison — instead of facing execution — will unfold over coming days.

Williams, who prosecuted two federal death penalty cases, has been following the synagogue shooting case. He said that the defense decision to go heavy on the mental health evidence in the eligibility phase allowed them to control the narrative a bit more than would otherwise be expected.

“It’s definitely an interesting strategy — the question is whether the jury buys it, or do they lose credibility?” he said.

He expects the defense will call a mitigation expert who will weave together Bowers’ entire life history, likely going back generations, and tie that information to the mental health evidence already presented.

“I think it works in a vacuum really well. It sounds right and makes sense. But when you put it into context of the case, it does not carry over,” Williams said.

Especially, he continued, when that is juxtaposed with powerful, emotional victim impact testimony.

“It will do a good job re-centering the case on the victims,” Williams said. “You’ve been talking about the defendant for weeks.”

During victim impact testimony, Williams said he expects the prosecution will talk about the quality of the lives lost.

”The victim impact will resonate with the jury, and at the end will be what you’ll remember,” he said. “It’s really hard.”

Williams expects deliberations in this phase of the trial will likely last longer — if for no reason other than the complexity of the decision.

There could be dozens of mitigators listed in the verdict form, he said, including things like, “he’s a valuable son to his family.”

For each mitigator listed, the jurors must think about it, talk about it and vote.

“It forces the jury to strongly consider it,” Williams said. But, he continued, “it can be fairly trivial compared to ‘he killed a roomful of people.’”

To sentence Bowers to death, the jurors must be unanimous, which can be especially difficult where questions are raised about a defendant’s mental health.

“It just takes one juror,” Williams said. “If one juror latches on to the mental health stuff, then that’s it.”

Here is a summary of the witnesses who testified last week and the length of time they spent on the stand.

Day 22

18. Dr. Park Dietz (continued from previous day: 5 hours 50 minutes)

Dietz, a nationally renown psychiatrist who has worked on cases including Jeffrey Dahmer and Tamerlan Tsarnaev, told the jury Bowers had the capacity to plan and intent to kill at the time of the synagogue attack.

After spending several hours talking to the defendant over three days in May, Dietz concluded he does not have schizophrenia, which requires delusions. The psychiatrist said that Bowers’ extreme beliefs in white supremacy and antisemitism are not delusional thinking and instead represent the thinking of an entire subculture.

“Most of us have people in our lives who will call us on it when we go off the rails into these fringe ideas,” Dietz said. “The defendant did not. No one said, ‘That’s stupid. Why do you believe that?’ There was no one he interacted with that he trusted that could tell him that he was wrong.”

During their conversations, Bowers told Dietz that he regretted not killing more people and causing more carnage and recognized the mistakes he’d made. He also was proud that he had no weapons malfunctions and said that was a result of choosing his weapons carefully and practicing.

“They can kill me if they want, but the score will still be 11 to 1,” Dietz testified that Bowers told him. “That’s not winning the war, but I won the battle.”

Day 23

Dr. Park Dietz (continued from previous day: 3 hours, 57 minutes)

On cross-examination, Dietz testified that he believed that Bowers’ mother exaggerated her son’s suicide threats and attempts to have him removed from her care.

He also was dismissive of the defendant’s mental health diagnoses as a child, saying that the doctors who reached those conclusions did so based on impressions and not documented criteria that Bowers met.

“The symptoms were not … of sufficient duration and severity to meet the diagnoses,” Dietz said. “Even if he did have major depressive disorder and [persistent depressive disorder] at the time, he does not anymore.”

He called the work “sloppy,” though later in his testimony backed off of that word.

Dietz also told the jury the government was paying him $800 an hour for his work in the Bowers’ case. Overall, his firm, with five people working a total of 718 hours, was paid than $382,000.

19. Dr. Peter Hauber (1 hour 39 minutes)

Hauber served as a psychiatrist at the Allegheny County Jail for three years and was working the day Bowers was admitted soon after the attack.

Called as a defense witness, Hauber said he evaluated the defendant on Oct. 29, 2018, to determine if he needed to remain on suicide watch.

Hauber testified that he interviewed Bowers for about 45 minutes — crouched down next to the food tray slot in his door — about his mental health history and current status.

During that interview, Bowers told Hauber he hated Jews and blamed them for illegal immigrants entering the country.

“He didn’t think there were any problems with his thinking,” Hauber testified. “Unfortunately, he had the president of the United States giving him ideas to take action. He felt he definitely was getting a directive he needed to take action, and we needed to do something about this.”

On his paperwork, Hauber diagnosed Bowers with adjustment disorder with mixed disturbance of emotions and conduct. However, on the witness stand, the psychiatrist said he didn’t have a lot of confidence in his findings.

“It could be a good diagnosis or a crappy diagnosis,” he said.

Hauber told the jury that he believed there was likely something wrong with Bowers and that had he had more time, he would have liked to further evaluate him for an underlying delusional disorder.

“People don’t go in to a church to murder old people for no reason,” he said. “Obviously, this behavior wasn’t logical. I think a reasonable person would say there’s a likelihood of a lot more going on here.”