Federal court considers Pittsburgh synagogue shooter’s bid to overturn death sentence
“It was exactly what our court system should look like. It was such a high level of questions and answers,” she said.
Lawyers for the Pittsburgh synagogue shooter appeared before the Third Circuit U.S. Court of Appeals on Nov. 3 to argue in support of vacating their client’s death sentence.
The shooter, who didn’t attend the hearing, was found guilty in 2023 on 63 counts, including 11 counts of obstruction of the free exercise of religious beliefs resulting in death, which carried the possibility of the death penalty.
In a separate trial following the determination of his guilt, a federal jury imposed a sentence of death for each of the defendant’s 22 capital offenses.
Since the sentence, the shooter has been held on federal death row at the United States Penitentiary in Terre Haute, Indiana.
Federal public defenders submitted a 500-page brief arguing 16 issues and alleging several errors in the trial of the case. During the Nov. 3 hearing, the Third Circuit’s three-judge appellate panel — Thomas Hardiman, Stephanos Bibas and Paul Matey — focused on four issues, giving defense and government attorneys one hour each to present their arguments.
Shackles
Defense attorney Margaret Farrand opened by arguing that the use of leg shackles a little more than halfway through the sentencing trial could have biased the jurors while deciding on a sentence.
During the final 19 days of the trial, the convicted killer wore leg shackles that the court and marshals worked to hide from the jury.
Farrand argued that trial Judge Robert J. Colville should have ordered an evidentiary hearing to determine if the shackles were required. She furthered argued that, despite the attempts at subterfuge, jury members could see the shackles when his attorneys approached the judge for sidebar conversations.
Pressed on how Farrand could prove that jurors had seen the shackles, the attorney pointed to a photo created by the defense for use in the appeal.
The government’s attorney countered that the defense photo was staged, and noted that not every attorney approached the judge’s bench during sidebars. The shooter, therefore, was not necessarily left alone at the defense table with his leg shackles visible to the jury. The prosecuting attorney added that, even if jurors saw the shackles, they would not have been prejudiced given that the shooter had already been convicted of murdering 11 people.
The prosecutor further argued that Colville’s decision to shackle the shooter without a hearing was based on information not disclosed in open court. That included the defendant’s statements to prison guards that he knew which marshals carried guns, believed he could disarm them and had made what marshals considered aggressive movements, including pressing his shoulders against guards while within reach of their firearms.
Juror 119
Farrand next took aim at one particular juror, whom, she said, should have been disqualified, or at the least subject to an evidentiary hearing.
Juror No. 119 had worked as a lawyer in China, where she witnessed at least one execution. The defense attorney characterized the juror as having been “part of an execution team,” but acknowledged under questioning by the judge that the juror had served as a witness to an execution, and that the defense knew little else about her involvement. That lack of information, the attorney said, was another reason a hearing was warranted.
The juror didn’t come forward with the information in her initial questionnaire, the defense attorney stated, and only revealed it during the period when jurors are questioned by lawyers.
During that voir dire period, the juror told the lawyers and judge that she believed she could be impartial and fair.
The defense argued that the information should have triggered an evidentiary hearing.
13th Amendment/commerce clause
Perhaps the most impactful and thorny aspect of the appeal involved the U.S. Constitution.
Ferrand argued that the shooter targeted the 11 people he murdered because of race, not religion, thereby nullifying the charges based on religious obstruction, which federal jurisdiction relied upon.
Further, the defense attorney argued there was no interstate commerce involved, and that buying a gun from another state and bullets from another country — Israel — wasn’t enough of a connection to trigger federal jurisdiction.
That argument faced a barrage of questions from the judges, who asked if the Supreme Court hadn’t already decided that Jewish people were both a race and religion.
The defense attorney also argued that practicing religion in a space rented by a synagogue wasn’t enough to qualify as commerce. Dor Hadash — one of the three congregations in the Tree of Life building at the time of the attack — leasing space in the building was a “passive” event, she said, and didn’t qualify as commerce.
During an exchange with the judges, Ferrand said that the crime was “interpersonal” and would have to be “aggregated” to include multiple crimes across state lines before it could be considered a federal crime.
Time was also spent on arguments about a U.S. Supreme Court decision — rendered after the shooter’s sentencing — which held 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 statutes with capital crimes for each of his victims.
The government offered to have one statute dismissed for each capital crime. The defense asked that the issue be remanded to a lower court to decide which statutes should be vacated and whether the death sentence should stand. She argued that prosecutors’ repeated references to the number of convictions may have swayed jurors toward imposing capital punishment.
Rona Kaufman, the co-founder of the Center for Jewish Legal Studies and a law professor at Duquesne University, attended the hearing with several of her students.
The appeal process, she said, was “brilliant.”
“It was exactly what our court system should look like. It was such a high level of questions and answers. The attorneys were really prepared and knowledgeable. They did a great job,” she said.
10.27 Healing Partnership Executive Director Maggie Feinstein attended the appeal with survivors of the attack and family members of those murdered.
The families and survivors, she said, have “immense gratitude” for the justice process that has been “inclusive of victims’ voices and allows for their presence.”
“For the impacted community, the courts have been so thoughtful,” Feinstein said. “Everybody from the security staff to the legal teams, of their presence and their rights as victims in the process.”
The families, she said, understand that the appeals process is part of the judicial system and have been prepared for this phase.
“This entire process, it felt as though we have a system that is making all the efforts it can to hold accountability for such a horrific act and to do it with dignity and care for those most impacted in this part of the process,” Feinstein said. “It feels like a necessary part of the process, which makes sure that our justice system gets it right and that above all, will pursue justice.”
Audrey Glickman is a survivor of the attack. She said she is glad the justice system is working and that the expected appeal is underway.
“We all deserve this as citizens,” she said.
Her hope is that the shooter will remain where he is, “on death row, separated from society with a greatly reduced opportunity to influence others to commit similar crimes.”
Michele Rosenthal’s brothers, Cecil and David, were murdered during the attack. She recently attended a service at Dor Hadash. As the Torah was walked around the synagogue, she recalled how it was a ritual her brothers “loved to do.”
Rosenthal said that it was hard to return to a courtroom, but she understood that it was part of the process.
“I appreciate the work that the prosecution team and the appeals team have done on this, and not forgotten how important it is,” she said.
For Rosenthal, one of the most significant parts of the process is that her brothers and the other victims are not forgotten.
The Pittsburgh synagogue shooter murdered 11 people in the deadliest antisemitic attack in United States history. Joyce Fienberg, Richard Gottfried, Rose Mallinger, Jerry Rabinowitz, Cecil Rosenthal, David Rosenthal, Bernice Simon, Sylvan Simon, Daniel Stein, Melvin Wax and Irving Younger were all murdered Shabbat morning Oct. 27, 2018.
There is no time limit for the court’s deliberation. Once a decision is announced, either party 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. PJC
David Rullo can be reached at drullo@pittsburghjewishchronicle.org.
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