The jury will begin considering today whether the man found guilty of killing 11 Jewish worshipers at the Tree of Life Synagogue in 2018 should be sentenced to the death penalty or life in prison.
On June 16, a 12-member jury found Robert Bowers guilty of all of the 63 federal counts he faced during the first phase of the trial, some of which may be punished by death. In this second phase of his trial, the same jury will decide if his crimes make him eligible for the death penalty, and if he should be executed. The decision must be unanimous.
Bowers’ lawyers previously attempted to enter a guilty plea to the charges in exchange for a sentence of life in prison, however, prosecutors are seeking the death penalty.
The victims killed by Bowers included Joyce Fienberg, Richard Gottfried, Rose Mallinger, Jerry Rabinowitz, brothers Cecil Rosenthal and David Rosenthal, husband and wife Sylvan and Bernice Simon, Daniel Stein, Melvin Wax, and Irving Younger.
They belonged to three congregations that worshiped at the Tree of Life Synagogue: Congregation Dor Hadash, New Light Congregation and Tree of Life / Or L'Simcha.
If the jury finds Bowers eligible for the death penalty, defense lawyers will present mitigating circumstances that may convince the jury to spare his life, including a recent psychiatric evaluation. During the jury-selection process, defense lawyers implied they may offer evidence that Bowers may have schizophrenia, epilepsy and other mental health issues and developmental abnormalities that diminish his culpability for his crimes.
Lead defense attorney Judy Clarke specializes in representing people facing the death penalty inhigh-profile cases. She successfully avoided death sentences for many of her past clients, including the “Unabomber,” Ted Kaczynski.
The prosecution is expected to focus on the methodical and targeted nature of the crimes, including anti-Jewish sentiments and slurs made by Bowers.
Unity without unanimity
The next phase could create more of a strain on some Pittsburghers, including those in the local Jewish community.
A majority of the families who lost loved ones have said they believe Bowers deserves the death penalty. Michele Rosenthal lost her two brothers, David and Cecil, in the attack. Before the trial started, she decided to make her stance clear again.
“Our family has suffered long and hard over the last four and a half years. We don't want to have to continue to defend ourselves and our position. We want justice,” she said.
Two of the congregations that were attacked in 2018, the New Light congregation and the Tree of Life congregation, have not taken an official stance on whether Bowers deserves the death penalty.
But Dor Hadash, one of the three congregations that worshiped at the Tree of Life,sent a letter to the U.S. Attorney General in 2019 requesting a life sentence. The letter said that Jerry Rabinowitz, the Dor Hadash congregant killed in the attack, was “firmly and unequivocally opposed to the death penalty.” Rabbi Jonathan Perlman of the New Light congregation wrote a similar letter opposing the death penalty.
University of Pittsburgh law professor David Harris has worked to help educate Pittsburghers about legal issues in the trial. He said some Jewish community members want Bowers to receive the death penalty because inmates on death row have little ability to communicate with the outside world. If he were sentenced to life in prison, the bureau of prisons would have some discretion over how much communication he is allowed.
“The idea was that they could do as much as possible to cut this guy off from the world, to not have him be able to communicate with or inspire anybody else beyond the horrible acts he’s already done,” Harris said.
Disagreement about the death penalty may seem like division to an outsider. But canonical Jewish texts are structured around arguments and disagreements, which can lead to different interpretations, said Rabbi Mark Goodman, an associate rabbi at the Beth Shalom synagogue in Pittsburgh.
“The core text of Rabbinic Judaism is a book called The Talmud, and the Talmud is effectively a 39-volume, 5,000-page series of arguments between rabbis with no resolution,” Goodman said.
In the Catholic religion, he said, followers are supposed to listen when the Pope makes a pronouncement. That isn't the case in Judaism, Goodman said.
“For a lot of us in the Jewish community, when you see a rabbi make a pronouncement like it's authoritative and it's the only opinion — most of the rest of us look at that person like, ‘Dude, what's up with that guy?’” he said. “It feels disingenuous and or even dishonest to say this is the only correct opinion.”
What does Jewish law say about the death penalty?
Rabbi Danny Schiff is in charge of adult learning for the Jewish Federation of Greater Pittsburgh. He said the Torah is very clear in stating that capital punishment is allowed. But around 1,000 years later, rabbinical scholars made clear in the Talmud that even one execution every 70 years might be too frequent, he said. Those rabbis discuss a series of very specific legal requirements for capital punishment cases that would make it nearly impossible to put someone to death.
“It's something that our tradition seems to want to be available but exceedingly rare,” he said. “And that, of course, leaves open the fascinating question in the case of some of what happened in Pittsburgh as to whether this is one of those cases.”
For many Jewish thinkers, including Goodman and Schiff, the most significant capital case occurred 61 years ago when the state of Israel tried and executed Adolf Eichmann for his role in orchestrating the murder of millions of Jews in the Holocaust. But the Eichmann case is a bit of a paradox, Schiff said.
“None of the classic criteria for the death penalty that Jewish law would stipulate were in place,” he said. “And yet there seems to have emerged a consensus among Jews and among rabbis that what happened to Eichmann was appropriate.”
The fact that the most salient example of a unified response to an execution occurred in a case where many requirements of Jewish law weren’t present opens the doors for individuals to decide for themselves what is worthy of the death penalty.
Goodman said his congregants are talking about the trial, but they haven’t been coming to him for rabbinical advice about the death penalty.
“I feel like a lot of people here have an emotional anger, rage, frustration, deep sadness about the shooting,” he said. “And they may feel that the person should be put to death, and then they don't necessarily feel great about the idea that Jewish law may come against those feelings.”
When it’s all said and done, the unity shown by the community and during the legal response to the killings may be more indicative of the place of Jews in America than the hate implied by the crime itself, said Daniel Fellman, the senior rabbi at Temple Sinai. According to Fellman, the attack brought ordinary Pittsburghers into solidarity with the Jewish people, and it brought Jewish people together, regardless of their different views.
History is replete with examples of Jewish people being attacked without receiving justice, Fellman said, so regardless of the sentence Bowers ultimately receives, his conviction feels momentous:
“It's an overwhelming feeling to think to myself, ‘Finally, we're living in a time where this is possible,’ and what that means and what my grandparents or my great-grandparents would have thought to see this.”
