10.27 Healing Partnership preparing community for synagogue shooter’s appeal

Nearly three years ago, the Pittsburgh synagogue shooter was sentenced to death for the murder of 11 people on Oct. 27, 2018, in the Tree of Life building. The mandatory appeal in the case is now pending before the U.S. Court of Appeals for the Third Circuit, with briefings nearing completion.

To ready the community for the next steps in the appeal process, the 10.27 Healing Partnership is presenting the educational workshop “Understanding the Legal Appeals Process of the Pittsburgh Synagogue Shooting,” with David Harris, a professor at the University of Pittsburgh School of Law, and Superior Court Judge Jill Beck.

Harris said the reason for the workshop is simple.

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“Knowledge is power. If we know more, if we understand more, we have the ability to understand what is coming and to understand why it’s happening,” he explained. “The law is a bit of black box for lay people to understand what’s happening and why. To understand what to expect gives people a certain amount of comfort.”

Death penalty cases, Harris said, are among the few areas of criminal law — if not the only one — where appeals are mandatory.

“It’s part of how we assure ourselves that we’re doing the right thing as a system and as a society,” he said.

The Third Circuit, which will decide the issues raised in the appeal, oversees federal cases in three states: Pennsylvania, Delaware and New Jersey, as well as the Virgin Islands, and is comprised of 24 judges, three of whom are assigned to the case.

Typically, they adjudicate cases in Philadelphia but will hear this case in Pittsburgh.

Harris said that in the appeals process, the judges will consider only legal issues where there could have been a mistake made during the trial.

“This won’t be about the specific facts of what happened,” Harris said. “This will be about, for instance, was the jury selection handled correctly? Was the judge right when he refused to change the venue of the trial? Those are legal issues.”

The appeals process, he said, is important because the legal system is designed by humans and, as a result, open to the possibility of mistakes. An appeal assures the public that a verdict of guilt was handed down in a “scrupulous and fair way and adheres to legal standards.”

“That’s not about [the defendant]. That’s about us. We want to feel confident when we deliver a verdict of guilt,” Harris said.

The defense, he said, has delivered its brief to the court, listing its arguments. The government has replied. Responsive briefs will be filed by both parties, and then the court will schedule a hearing. The hearing will likely last about an hour and allow the judges to hear from both sides, arguing the issues of law raised in the briefs.

Finally, the judges confer and come to a decision. A unanimous decision isn’t required; instead a majority decision wins the day. Opinions are written and the public learns of the court’s decision when those opinions are published.

There is no required timeline for the publishing of an opinion; in fact, Harris said they sometimes “linger for quite a long time.”

“A complex case like this, raising many issues on appeal, we have got to be prepared to wait,” Harris said. “It’ll take as long as it takes.”

Even then, the decision reached by the appellate court might not be the end.

If one of the parties is unhappy with the decision reached by the judges, they can ask for a rehearing “en banc,” meaning that all the judges of the U.S. Court of Appeals for the Third Circuit would hear the case.

And if the defense loses that appeal, it has one option left: an appeal to the U.S. Supreme Court.

“At each stage of the process, it gets both less common and harder to win an appeal,” Harris explained.
There are a few issues that make this appeal unusual, he said.

The first is a decision by the U.S. Supreme Court — that came after the shooter’s sentencing — which ruled that the Constitution’s double jeopardy clause prohibits a defendant from being convicted twice for a single act in the same trial in a capital case. The Pittsburgh synagogue shooter was found guilty under two different statues with capital crimes for each of his victims.

“The prosecution has conceded in the appeal process that one of those verdicts cannot stand,” Harris said. “They are arguing that the other still stands, so he’s going to be subject to 11 death counts,” rather than 22.

The defense is also arguing that the charge of “obstruction of free exercise of religion” violates the Constitution.

“The defense is effectively saying, ‘This can’t have anything to do with religion,’” Harris said.

Other issues in the shooter’s appeal are related to jury selection and his change of venue requests.

10.27 Healing Partnership Executive Director Maggie Feinstein said the justice process “can be confusing for so many reasons but can also be healing for many reasons.”

“Providing education sessions like this are opportunities for our community to be active participants in the justice process through learning and evaluating together,” she said.

The workshop will be held on Aug. 4 at the JCC in Squirrel Hill. PJC

David Rullo can be reached at drullo@pittsburghjewishchronicle.org.