Tree of Life Shooter’s Defense Employs Unpredictable Strategy by Focusing on Mental Health, Family History

Attorneys representing the gunman who killed 11 worshippers in an anti-Semitic attack at the Tree of Life Jewish center in 2018 hope jurors weighing the death penalty will considered their client's mental health and a tumultuous family history when deciding his fate.

The strategy — which has played out in a Pittsburgh courtroom during the sentencing phase of Robert Bowers' trial — is common but unpredictably effective, legal experts say.

Bowers' defense team called two former workers of a psychiatric facility Tuesday to corroborate records that show he had been in and out of treatment facilities for emotional problems and had a strained relationship with his mother, WTAE reported. 

Neither had any recollection of interacting with Bowers and based testimony solely on old records.

A former therapist also testified, reading notes from her sessions with him as a child. "I see Robert as a very angry, frustrated and sad child," she said, according to the news outlet. "I strongly recommend individual therapy for Robert as well as family counseling for everyone in the household."

Bowers was convicted last month of all 63 federal charges against him, including 22 capital offenses for the 2018 murders, which make him eligible for the death penalty.

Attorneys have also painted a picture of multi-generational trauma that began with Bowers grandmother in the 1930s.

Nathan S. Williams, a former federal prosecutor who tried South Carolina church shooter Dylann Roof's death penalty conviction, says focusing on issues like multi-generational trauma and mental health can be "a double-edged sword."

"It can show a pattern and some explanation for conduct, but at the same time, it can be so remote that it can very much delude any kind of defense," Williams tells The Messenger.

That can make for an unpredictable outcome, he adds.

"Trying to somehow mitigate a massacre of 11 people because your great grandmother had mental health issues seems like a stretch so I think there's definitely a danger of deluding the mitigation case by being that remote," Williams explains.

"But if there is a clear line between the defendant's conduct and that history then I do think it can be effective, but I think it's hard to do."

Bowers' lawyers have called witness after witness to hammer down the narrative.

Former classmates testified on Tuesday about his mother's odd behavior, the tumultuous relationship between the two and Bowers' fascination with pipe bombs, explosives and guns, according to WTAE. 

A counselor, who worked with Bowers and his mother when they were students, was called to establish instability through poor attendance at school.

Earlier Tuesday, defense attorneys filed a motion to exhume the remains of Bowers' father to confirm paternity after prosecutors suggested there may be some doubt about Bowers' true parentage.

The defense hopes to establish a paternal family history of mental illness and — namely, schizophrenia.

Katherine E. Jensen, who's handled a number of death penalty cases and now works with the National Association of Criminal Defense Lawyers, said mitigation is essential for defense and should stretch as far and wide as possible when jurors are considering life and death.

"They should be going back and looking at all generations as far back as they can go," she said. "They should go back to the nurse that was in the delivery room."

Jensen believes the strategy has been effective in many cases — but admits it can be hard to know for sure unless the attorneys are able to speak with the jurors after sentencing.

A compelling argument for mitigation only needs to resonate with one juror to save a client's life in most states, Jensen adds, explaining why defense attorneys will focus on mental health and trauma that began in the distant past.

"They're not going out doing mitigation investigations just to cover their butts," she says. "They're doing it because they need to present everything to the jury for the jury to have a full picture of who this person is."