(JTA) — Defense lawyers for the man convicted of murdering 11 Jewish worshippers at a Pittsburgh synagogue began detailing their argument that he should not be sentenced to death, calling witnesses to identify abnormalities in his brain.
That point is a key part of the defense’s strategy to keep their client, Robert Bowers, off of death row.
Alongside the court proceedings, a rabbi affiliated with the local Jewish federation explained to reporters that there are differences of opinion as to when and how Jewish law would justify a death penalty. Families of the victims disagree as to whether the shooter should be executed, and outside the courthouse, a small group called “Jews Against the Death Penalty” held a protest.
On the whole, Tuesday’s events in the Pittsburgh courthouse demonstrated that, after nearly a month, the trial has entered a phase where the outcome is uncertain and both the prosecution and defense are invested in swinging the jury toward their arguments. In the preceding phase of the trial, both sides acknowledged that the gunman had committed the crime, and his lawyers didn’t mount a defense. He was found guilty of all 63 charges, including 22 capital crimes.
Now, the defense must first persuade the jury that the crimes are eligible for the death penalty, and then that there is at least one aggravating factor in the crimes that merits a death sentence. The defense, in each of those two stages, has the opposite task.
Testimony on Tuesday had to do with the defense’s argument that their client suffers from epilepsy and schizophrenia. Defense lawyer Michael Burt on Monday said that epilepsy could result in “psychotic symptoms and delusions.”
The defense’s star defense witness on Tuesday was Andrew Newberg, a neuroscientist at the Marcus Institute of Integrative Health at Thomas Jefferson University Hospital in Philadelphia who appeared via video, and who has cultivated a media profile for his writings on the brain and how it affects religious belief.
Newberg went through his report and said that he identified 40 areas out of approximately 70 in the defendant’s brain that showed activity outside of a normal range.
“A substantial number of brain areas seem to be remarkably underactive or remarkably overactive,” Newberg said, under questioning by Burt. “You could not process emotions and feelings as you would if you had a balanced brain.”
Later, assessing a scan of the gunman’s brain, he said, “The findings are consistent with extensive clinical abnormalities including emotional regulation impairment, cognitive and motor processing problems, and psychotic symptoms.” Under cross-examination, however, he said that his conclusions amounted to “a possibility, not a certainty.”
The defense’s argument, that the gunman’s alleged mental illness was central to his committing the crime, applies to both portions of the death penalty phase. The defense is arguing that it should be a factor in considering his intent, which would affect whether the crime he committed is eligible for the death penalty. In the next phase, if it occurs, the defense is likely to argue that his mental health should be a mitigating factor in considering whether he deserves to die.
The first three witnesses called by the defense on Tuesday morning were court-ordered experts who assessed the various scans the gunman underwent in 2021 and 2022. Their combined testimony suggested that it will be at least daunting for the defense to prove he had epilepsy.
Of three scans the defendant underwent, only one showed any evidence of epilepsy. Even in that case, the expert assessment was that the findings had to be correlated by a clinical examination. It was not clear if such an examination had taken place.
Burt, the attorney for the defense, pressed the court-ordered experts to acknowledge that epilepsy should not be counted out, and each agreed. Eric Olshan, a lawyer for the prosecution, pressed them to acknowledge that their findings were not conclusive — which they also did.
Another specialist who appeared for the defense was Murray Arthur Solomon, a neuroradiologist. He was called as an MRI expert. He said he identified 28 white matter lesions in the shooter’s brain, which he said was “highly unusual in a 49-year-old male.”
“The patient’s got permanent damage,” he said. “We have more white matter lesions than you can explain. He’s developed white matter lesions either through trauma or through epilepsy or through schizophrenia.”
Olshan got Solomon to confirm that other factors could result in white matter lesions, including smoking, opiate use and hypertension.
During a lunchtime break, the Pittsburgh Jewish Federation addressed a related question: What does halacha, or Jewish law, have to say about the death penalty? The federation organized a virtual conference with its resident scholar, Rabbi Danny Schiff, who explained to the media that that question is not settled.
“The Jewish tradition is a faith based system, but it is also based on a legal system that governed the life of the Jewish people for many centuries,” Schiff said. “It’s possible for the legal system to yield more than one viewpoint.”
The federation organized the appearance because of tensions that have emerged among survivors of the shooting over whether the death penalty should be applied.
There were three congregations housed in Tree of Life at the time of the massacre, and in 2019, two of them — New Light and Dor Hadash — appealed to the federal government not to seek the death penalty. The Tree of Life congregation has not made such an appeal. Seven of the nine families of the victims favor the death penalty, and at least one opposes it. The government rejected a plea deal from the defendant which would have had him avoid death row.
In April, Beth Kissileff, who is married to New Light’s rabbi, Jonathan Perlman, wrote an op-ed for the New York Times headlined “Jewish Tradition Rejects the Death Penalty.” Perlman was in the synagogue when the attack occurred.
“Jewish practice as I understand it does not — outside of self-defense — allow humans to take the lives of other humans,” Kissileff wrote. “Not even the life of a murderer whose guilt is beyond doubt.”
That op-ed prompted the sisters of two brothers who were killed in the attack, Cecil and David Rosenthal, to call a brief press conference in May to say that they favored the death penalty.
“This massacre was not just a mass murder of innocent citizens during a service in a house of worship,” Diane Rosenthal said then alongside her sister, Michele Rosenthal. “The death penalty must apply to vindicate justice and to offer some measure of deterrence from horrific hate crimes happening again and again.”
Schiff weighed in too, in an op-ed in the Pittsburgh Jewish Chronicle headlined “Judaism does not reject the death penalty” — a direct rebuttal to Kissileff’s Times op-ed.
He reinforced that point on Tuesday in his 20-minute virtual press conference.
“The spirit of Jewish law says that the death penalty should be available, and yet on the other hand is something that should be exceedingly unusual,” he said.