Government and defense attorneys on Wednesday suggested wildly different trial dates for alleged Tree of Life synagogue shooter Robert Bowers. While prosecutors pushed for the proceeding to begin this fall, the defense said late 2023 is more reasonable.
The attorneys met before U.S. District Judge Robert Colville Wednesday, three and a half years following the attack that killed 11 worshippers. Colville directed the two sides to work together to propose a timeline leading up to the death penalty trial.
“I'd like to take this opportunity to strongly encourage both the government and defense teams to very seriously look at what can be accomplished, particularly within the next six months,” Colville said. And while he pledged to take the precautions needed to ensure a fair trial, he added that he is not inclined to permit delays for matters that could have been addressed already.
The defendant faces more than 60 federal charges for offenses ranging from hate crimes to obstruction of religious belief and the use of a firearm during a crime of violence. His attorneys had sought to dismiss some of those allegations, saying that they stemmed from a racially biased grand jury selection process. But in an opinion issued Tuesday, Colville rejected that argument, concluding that the proceeding met standards that courts had set in earlier cases.
During Wednesday’s meeting, assistant U.S. attorney Soo Song said such pre-trial litigation and other investigatory processes should come to an end by this fall. Expressing frustration with how long the case has already dragged on, she suggested beginning jury selection in mid-September so that a trial can commence Oct. 19.
“We obviously seek a reasonable path to trial. We're in the fourth year since charges were filed against Robert Bowers related to the events of October 2018,” she said.
She said her proposed dates would accommodate Jewish holidays, such as Rosh Hashanah between Sept. 26 and 27 and Yom Kippur on Oct. 5.
“At the core of this prosecution … are charges that seek to protect the right of individuals to freely exercise their religion without violence,” Song noted. And while she acknowledged that capital cases involve extra procedures, she added that under federal law crime victims are entitled to “proceedings free from unreasonable delay.”
But assistant federal public defender Elisa Long countered, “What's important is how extraordinarily complex this case is. And the first and foremost reason it is complex and time-consuming is that the government has, in its sole discretion, elected to seek the death penalty.”
Such prosecutions consist of two trials, one to determine whether the defendant is guilty and another to decide whether he should be executed.
For the first trial, Long noted, lawyers are reviewing a voluminous collection of evidence that includes witness testimony, surveillance footage, firearms records, crime scene data, and DNA, along with 45 devices such as cell phones, computers, and tablets seized by the government.
Long anticipated a prolonged jury selection process because, she said, media coverage of the shooting has cemented much of the public’s views on the defendant’s culpability.
She said her team also still must conduct an extensive investigation before it can present evidence in the possible second trial that the defendant should not be put to death.
“It requires comprehensive record collection and interviewing, reaching back three generations to really develop [an understanding of] the influences –
social, genetic, medical, mental health – on Mr. Bowers,” she said.
Because of the pandemic, she said that some witnesses are unwilling or unable to participate in interviews that she said must be done in-person.
“We recognize the challenges … which have been presented by the COVID pandemic,” first assistant U.S. attorney Troy Rivetti said. “But … the essential work of the criminal justice system must and has continued throughout this pandemic.”
While prosecutors and defense lawyers agreed Wednesday to try to draft a timeline together for upcoming proceedings, they differed on how long that effort will take. The government accepted Colville’s suggestion of five days, but the defense wanted a couple of weeks. Colville ended up instructing them to submit what they can by Tuesday.
“I don't mean to send anyone on a snipe hunt,” the judge said. “But you’re all professionals. You’re all talented, competent, worthy people. At least make the phone call or send a text or send the email, and see what happens.”
