When U.S. Attorney General Jeff Sessions resigned last week, he left behind the decision of whether or not accused synagogue shooter Robert Bowers will face the death penalty.
Bowers, 46, of Baldwin, faces 44 federal charges, including hate crimes. Authorities said he carried an AR-15 and three handguns into the Tree of Life synagogue in Squirrel Hill on Oct. 27 and killed 11 people and injured six more, including four police officers.
Two days later, U.S. Attorney for the Western District of Pennsylvania Scott Brady said he had started the process to pursue the death penalty against Bowers — a decision that ultimately rests with the U.S. Attorney General.
But Bowers’ trial can’t begin until that decision is made, Margaret Philbin, a spokesperson for federal prosecutors with the U.S. Attorney’s Office for the Western District of Pennsylvania, confirmed to The Incline. Lawyers need to know if it’s a capital case before preparing and selecting a jury.
On Nov. 1, Bowers entered a not guilty plea in federal court and requested a jury trial. He was told then that he could face the death penalty. A case status conference is set for Dec. 11, per court records.
So with Sessions gone, and Matthew Whitaker as acting U.S. Attorney General, how could that impact Bowers’ case?
The short answer from experts: It may be impossible to predict.
“We don’t know how long Matthew Whitaker will be serving as acting attorney general, so we don’t know who ultimately will be making the decision,” Robert Dunham, executive director of the Death Penalty Information Center told The Incline in an email.
Decision-making ahead of the U.S. Attorney General’s final decision on a death penalty case is confidential, according to the U.S. Department of Justice website.
Dunham added: “I think questions about the constitutionality of the manner in which Whitaker was installed will complicate any case-specific decisions until the appointment-related issues are resolved.”
Sessions resigned the day after the midterm elections at President Donald Trump’s request, ending a relationship that went sour when Sessions recused himself from the investigation into whether foreign governments, largely Russia, interfered with the 2016 presidential election. Questions continue to swirl about what Whitaker’s appointment means for Robert Mueller’s investigation.
But William Schweers, an assistant professor of political science and executive director of the Atkins Ethics Center at Carlow University, said he doubts that will impact Bowers’ case.
Schweers said he doesn’t think there is any question that authorization for the death penalty will be granted. Plus, he said, Trump was clear in advocating for the death penalty in this case, too, pointing to a phone call between Trump and Pittsburgh Mayor Bill Peduto.
Per The Washington Post, on the day of the shooting, Peduto received a call from Trump:
After offering thoughts and prayers — and pledging anything Peduto needed, including a direct line to the White House — Trump veered directly into policy, Peduto recalled. The president, Peduto said, insisted on discussing harsher death penalty legislation as a way to prevent such atrocities. Peduto was stunned into silence.
Trump also called for the death penalty twice on the day of the mass shooting, three days before he came to Pittsburgh to pay his respects to the victims.
“I think that any nominee will share his view on the death penalty,” Schweers said.
According to the DOJ website, the standards for the U.S. Attorney General to make a decision include fairness, national consistency, adherence to statutory requirements and law enforcement objectives such as the strength of the evidence and if the defendant is willing to plead guilty and accept life without the possibility of release.
Currently, there are 62 prisoners on federal death row, per the Death Penalty Information Center. Since capital punishment was reinstated 30 years ago, just three prisoners have been executed, the last in 2003. In that time, 12 defendants were sentenced, but removed from death row, and in three cases, the death sentence was recommended but not imposed.
Death penalty cases are more common at the state level, and Bowers faces an additional 36 state charges. Despite a moratorium on executions in Pennsylvania, prosecutors could still pursue the death penalty at the state level, as well. Officials haven’t said if they will but did say the federal case takes priority.
Gov. Tom Wolf told Newsradio 1020 KDKA that he will support whatever penalty Bowers’ is given if convicted.