Synagogue Shooting Trial: A Test for Death Penalty Opponents, Biden Administration and the Jury

On May 30 the capital trial of Robert Bowers began in Pittsburgh, Pa. Bowers is charged with killing 11 worshippers at the Tree of Life synagogue in 2018, and he is being prosecuted by the Biden Justice Department. 

In her opening statement this week, Assistant U.S. Attorney Soo Song painted a horrifying picture of the suffering Bowers inflicted and of the hatred that inspired him. She told the jury that the defendant “used multiple weapons, including an AR-15 semiautomatic rifle and boasted of his intent on social media moments before he entered the Tree of Life synagogue during morning prayer services on Oct. 27, 2018.”

Song insisted that Bowers “did not spray bullets at random, but tracked down congregants, shooting them at such close range — in many cases in the head, and multiple times — that he singed the flesh of some victims with the heat from his rifle.”

She promised to prove that his view of Jews as “a cancer upon the planet” inspired him to commit the deadliest antisemitic attack in U.S. history. She told the jury that when officers apprehended Bowers and asked why he did it, he blurted vile antisemitic conspiracies.

Bowers seems, at first glance, to be the poster boy for the death penalty. If ever there was an embodiment of what law professor Robert Blecker calls the “worst of the worst,” Bowers would seem to be it.

Yet the Bowers case challenges us to understand not just what he did and why, but who he is and what factors shaped his life such that he could slaughter innocents. It challenges even death penalty opponents to acknowledge their own ambivalence about how to respond to such evil.

Let’s start with what the case tells us about the Biden administration’s own ambivalence in death cases.

The president and his administration seem to be saying one thing, and doing another, promising to end the death penalty, yet bringing a capital prosecution against Bowers.

On one hand, Attorney General Merrick Garland has taken some important steps to turn abolitionist rhetoric into action. He has imposed a moratorium on federal executions and reversed the decisions of past administrations. He has taken the death penalty off the table in 27 of the cases he inherited, including those involving murders of witnesses, gang homicides with multiple victims, and even the killing of a sheriff’s deputy.

Among these cases, Garland recently decided not to seek a death sentence in the case of Patrick Crusius, who murdered more than 20 people in a hate crime at a Walmart in Texas.

At the same time, Garland continues to resist addressing the problems and injustices that have long plagued federal death penalty prosecutions. The Associated Press quotes Ruth Friedman, head of the federal defender service in Washington, D.C., who says that the Justice Department under Garland is “fighting back as much as they ever have. If you say my client has an intellectual disability, the government…says ‘No, he does not.’ If you say ‘I’d like (new evidence)’ they say, ‘You aren’t entitled to it.’”

Nor, as the AP notes, has Biden’s Justice Department accepted any claim of racial bias or conceded procedural errors in any of the appeals brought by inmates on the federal death row in Terre Haute, Indiana.

And it has proceeded with some death penalty prosecutions, like Bowers’s, that were begun in other administrations.

It is hard to see the logic of this one step forward, two steps back, approach to capital punishment, proceeding in some mass murder or domestic terrorism cases but not others. The only thing that’s consistent about the Biden administration’s death penalty policy is its inconsistency.

But maybe it is not inconsistency as much as ambivalence.

That ambivalence seems to have vanished in the Bowers case. The Justice Department has consistently refused to accept the defendant’s offer to plead guilty in exchange for a life sentence. Its refusal reflects the wishes of the families of some of the murder victims.

In July, 2021, seven of the nine families sent a letter to Attorney General Garland that supported seeking the death penalty in this case. They spoke out because some members of the Tree of Life congregation had already called on the Justice Department to not seek the death penalty.

When the trial began, Bowers pled not guilty, even as his lawyer acknowledged that he carried out the killings. His lawyer is Judy Clarke, a skilled death penalty defense lawyer who has represented a number of high-profile federal defendants, including the Unabomber and the surviving Boston Marathon bomber, Dzhokhar Tsarnaev.

In the Bowers case, Clarke is now doing what good death penalty defense lawyers often do: She is using the first phase of the trial to seed the ground for what will come later when the jury considers how Bowers should be punished. She knows how risky it is when death penalty defense lawyers first try to persuade a jury that their client didn’t do what they are accused of doing and then, if they fail in that effort, try to explain to that same jury why their client did what they previously denied they had done.

This is why Clarke said right from the get-go that Bowers was the shooter. “He shot every person he saw,” Clarke told the jury in her opening statement. She called the shootings a “tragedy… that is impossible to grasp.” But she made sure to emphasize that while the shootings were “incomprehensible,” they were also “inexcusable.”

Clarke claimed that the case would hinge on Bowers’s motives and intentions, which she told jurors they would have to carefully examine — and if they did, they would understand that he was not just an antisemite.

In preliminary motions, Clarke signaled the kind of argument she will make when the time comes for the jury to consider whether to spare Bowers’s life: She will attempt to convince the jury that he suffers from several crippling disorders, including schizophrenia and structural and functional brain impairments.

While these things don’t excuse what Bowers did or mean that he is not responsible for the murders, they help put them in context. They offer a lens through which the jury can see the human being behind his inhuman acts.

Maybe there is a lesson in the Biden administration’s equivocation about the death penalty that might help guide the jury. What looks, in its broadest outline, to be black and white and utterly clear-cut is more nuanced and doubtful when examined closer up.  

When we look close up at people like Robert Bowers, we may be left feeling torn. We cannot ignore the horror of his crime even as we see, as anti-death penalty activist Bryan Stevenson says, that “each of us is more than the worst thing we’ve ever done.”

In due course, Judy Clarke will ask the jury to weight that ambivalence on the side of life and to understand what Stevenson would call the “brokenness” of her client. Doing so should lead them to recognize the “need to show mercy” — even to people like Bowers.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty” and “Lethal Injection and the False Promise of Humane Execution.” The views expressed here do not represent Amherst College.