Will accused gunman Robert Bowers face the death penalty in the Tree of Life shooting?

“If not this case, which case?” one legal expert said.

U.S. Attorney Scott W. Brady made a very brief statement summarizing initial proceedings for Robert Bowers on Oct. 29, 2018 at the federal courthouse.

U.S. Attorney Scott W. Brady made a very brief statement summarizing initial proceedings for Robert Bowers on Oct. 29, 2018 at the federal courthouse.

Cara Owsley / USA TODAY Network
MJ Slaby

Despite Pennsylvania’s moratorium on executions, accused gunman Robert Bowers could face the death penalty if he’s convicted in the Tree of Life synagogue shooting that left 11 people dead and 6 injured.

The U.S. Department of Justice laid out potential sentences Wednesday — death, or life without parole followed by 535 years in prison — when announcing a federal grand jury had handed down a 44-count indictment against Bowers, 46, of Baldwin.

Bowers also faces 36 charges, including 11 counts of homicide, in Pennsylvania, where Gov. Tom Wolf halted executions in 2015.

Here’s what could happen.

Mourners visit Tree of Life on Monday, Oct. 29, 2018.

Mourners visit Tree of Life on Monday, Oct. 29, 2018.

Cara Owsley / USA TODAY Network

‘If not this case, which case?’

Currently, there are 62 prisoners on federal death row and 160 on death row in Pennsylvania, per the Death Penalty Information Center, a non-profit resource center that doesn’t take a side in the debate.

Capital punishment is more likely in state cases, because murder is prosecuted at the state level, so the federal government generally has fewer of these cases, said David Harris, a law professor at the University of Pittsburgh who specializes in criminal law and procedure.

It takes a “specific set of circumstances” for the federal government to take on a murder case, he said.

Charges against Bowers include such circumstances — the “obstruction of exercise of religious beliefs resulting in death.” Per the FBI, a hate crime is a crime that has an added element of bias “against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

Hate crimes cases are usually more visible, but often it’s not the hate crime that makes it punishable by death, it’s the manner it was carried out, said Robert Dunham, executive director of the Death Penalty Information Center.

Pittsburgh Bureau FBI Special Agent in Charge Bob Jones said Bowers “targeted [the victims] simply because of their faith.” He is accused of walking into Tree of Life on Saturday with four guns and killing 11 people and injuring six others, including four police officers, during Saturday morning services.

On Wednesday, a federal grand jury indictment charged him with:

  • 11 counts of obstruction of free exercise of religious beliefs resulting in death
  • 11 counts of use and discharge of a firearm to commit murder during and in relation to a crime of violence
  • 2 counts of obstruction of free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon and resulting in bodily injury
  • 11 counts of use and discharge of a firearm during and in relation to a crime of violence
  • 8 counts of obstruction of free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon, and resulting in bodily injury to a public safety officer
  • 1 count of obstruction of free exercise of religious beliefs involving use of a dangerous weapon and resulting in bodily injury to a public safety officer

Today, Bowers is scheduled to be in federal court for a preliminary hearing. Per the U.S. Department of Justice, the grand jury charges and penalties will be read to him then along with his rights.

U.S. Attorney for the Western District of Pennsylvania Scott Brady said earlier this week that he initiated the approval process for capital punishment, though U.S. Attorney General Jeff Sessions will ultimately make that call.

Sessions has not yet announced his decision but said in a statement the DOJ released with the indictment that the “alleged crimes are incomprehensibly evil and utterly repugnant to the values of this nation.”

President Donald Trump himself called for the death penalty twice Saturday, three days before he came to Pittsburgh to pay his respects to the victims.

“When people do this, they should get the death penalty,” Trump said during a Future Farmers of America Convention in Indiana. “Anybody that does a thing like this to innocent people that are in temple or in church ― we’ve had so many incidents with churches ― they should be suffering the ultimate price.”

Pittsburgh legal experts were quick to say they expect the death penalty to be approved.

“There’s no question about how that’s going to go,” said Bruce Ledewitz, professor of law at Duquesne University and the former director of the Allegheny County Death Penalty Project, which opposed the death penalty. “…If not this case, which case?”

Gov. Tom Wolf, center, walks with Allegheny County Executive Rich Fitzgerald

Gov. Tom Wolf, center, walks with Allegheny County Executive Rich Fitzgerald

LEXI BELCULFINE / THE INCLINE

Pennsylvania’s moratorium

Bowers also faces 36 state charges, and on Tuesday, the Allegheny County District Attorney’s Office asked that Bowers be briefly relinquished from federal custody to be arraigned on those charges. That request was denied.

Officials previously indicated that federal charges would take priority, and Allegheny Co. DA Stephen A. Zappala Jr., echoed that in a Tuesday statement, saying “this is clearly a capital case.”

The state hasn’t said if it would pursue the death penalty.

Wolf announced a moratorium on executions three years ago, as he waited for a report that was ultimately released this June and advised several changes including a publicly funded agency that would provide legal representation in death penalty cases.

The moratorium only impacts executions, so Pennsylvania prosecutors can still seek the death penalty and do, Dunham said, but there was a decline in that happening even before the moratorium.

Dunham added that while the state’s halt of executions is not supposed to impact the federal pursuit of the death penalty, some observers have noticed an increase in federal death penalty cases in states without capital punishment.

The governor told Newsradio 1020 KDKA that he would agree with Bowers’ punishment if he’s found guilty.

“When it comes to the murder here, this anti-Semitic violence was a heinous crime and Bowers deserves swift justice. He is being and is indicted by the use of federal statute, and he should get the harshest penalty under the law,” Wolf said.

The Joseph F. Weis Jr., U.S. Courthouse on Grant Street.

The Joseph F. Weis Jr., U.S. Courthouse on Grant Street is seen on ahead of the first court appearance of Robert Bowers.

Cara Owsley / USA TODAY Network

What could happen next

Overall, the pursuit of the death penalty has decreased at both the federal and state level across the U.S., said Dunham.

In the last year, however, there’s been an increase in federal notices of intent to pursue the death penalty that ranks somewhere with the early years of the George W. Bush administration, he said. That hasn’t led to an increase in trials because of the long list of things that can happen in the meantime, including an expensive preparation period for lawyers, Dunham said.

If the death penalty is pursued in Bowers’ case, the basics of the court process will be the same, Harris said, adding there are two stages — determining guilt and deciding the penalty. The jury, if there is one, would be the same for both, he said.

The only option for a plea bargain in a death penalty case (and there doesn’t have to be one) would remove the possibility of capital punishment, Harris said. It’s far too early to tell if Bowers would be willing to plead guilty, but Harris added that his lawyers would be looking for any way to remove the death penalty.

In court on Monday, U.S. Magistrate Judge Robert C. Mitchell said Bowers submitted a financial claim requesting the appointment of a public defender.

Before this case, only four other notices of intent were filed in the Western District of Pennsylvania since the federal death penalty was reinstated in 1988, per the Federal Death Penalty Resource Counsel. The others include:

  1. Joseph P. Minerd (2000) — Minerd was found guilty of using a pipe bomb to kill his pregnant ex-girlfriend and her 3-year-old daughter. However, a jury couldn’t decide on the death penalty, so he was sentenced to life in prison in 2002.
  2. Lawrence A. Skiba (2003) — Skiba was sentenced to 20 years in prison in 2005 after pleading guilty to interstate murder for hire. The death penalty was dropped after he agreed to plead guilty and to cooperate in a second case.
  3. Claron Hanner (2006) — Hanner pleaded guilty in 2007 to fatally shooting Frank Helisek Jr., the father of a witness in a drug case. In exchange for the plea, the death penalty was dropped.
  4. Jelani Solomon (2006) — Solomon hired Hanner to fatally shoot Helisek. The jury couldn’t agree on the death penalty, but agreed to life in prison.

Of the 62 prisoners currently on federal death row, one committed a crime in Pennsylvania. Kaboni Savage was sentenced to death in Pennsylvania’s Eastern District in 2013 “for his involvement in the killings of 12 people in connection with a drug enterprise,” per the Death Penalty Information Center.

Generally, most death row prisoners are housed in the Special Confinement Unit at U.S. Penitentiary in Terre Haute, Indiana. The federal death chamber is also there.

In the 30 years since the death penalty was reinstated, three prisoners have been executed, the last one in 2003, according to the center. That’s because a lot of cases get reversed or there are challenges to the lethal injection process, Dunham said.

In that time, 12 defendants were sentenced, but removed from death row, and in three cases, the death sentence was recommended but not imposed.