As jury selection grinds on in the Pittsburgh synagogue massacre trial, the judge overseeing the case said Monday that he will allow government psychiatric experts to examine the accused shooter as soon as possible to rebut defense claims that he has mental health problems.
U.S. District Judge Robert Colville said both defense and prosecution are “not without fault” in their endless bickering over every aspect of the exams but ruled that the government is entitled to have its own experts conduct tests on the defendant.
Robert Bowers, 50, is on trial in the 2018 shooting deaths of 11 worshippers at the Tree of Life synagogue building. He faces the federal death penalty if convicted.
Jury selection entered its third week Monday with all-day questioning of potential jurors.
Meanwhile, the judge is ruling on various outstanding motions.
A key one involves the defendant’s mental health.
The defense team, trying to spare him from the death penalty, says its experts have determined that he has schizophrenia, epilepsy and “functional and structural impairments of the brain.” They want to introduce that evidence during the penalty phase of the trial.
Prosecutors want their own experts to examine him “solely to rebut mitigation evidence.”
Colville granted the motion — but imposed his own rules on how and when it will be done.
For one thing, the defense wanted to delay the tests until after the guilt phase. Prosecutors objected, saying it will cause yet more delays.
The judge sided with the prosecution, saying the testing should be done “forthwith.” The exams will take about four days and preparing the reports will take several weeks. So get on with it now, he said.
He ruled that the government’s exams “will take place, at the latest, directly following the completion of voir dire [jury selection] or five days after the Government’s experts’ provision of notice, whichever date is later. The parties should begin making preparations consistent with this timeline immediately.”
While that was a win for the government, Colville said the defense is correct to object to the proposed location of the testing: The U.S. attorney’s office. He said the exams will be done in the jail where the defendant is being held.
He also rejected the government’s request for “firewall counsel” to act as an intermediary. Colville said he’s already ruled that a go-between lawyer isn’t necessary and said the experts can communicate with him or his staff directly if any issues come up regarding the testing.
Colville also ruled that the experts’ reports can only be used as rebuttal and ordered the government to turn over the qualifications of its experts and the tests they plan to do within two days of his order.
But he rejected a defense request that government experts not be allowed to perform the same tests as the defense experts. They can do whatever testing they want to, he said. If the defense doesn’t like it, they can object later to admissibility or cross-examine during the trial.
Finally, Colville rejected a defense request that Bowers’ lawyers be allowed to watch the exams and ruled against a government request that the exams be recorded.
The government also wanted the judge to force the defense to turn over its experts’ opinions on the defendant’s mental health in addition to the raw data of various tests, such as CT and PET scans. Citing other cases, Colville said the government is only entitled to the defendant’s medical records but not the defense experts’ opinions or reports. The defense must, however, turn over the raw data from the various brain scans.
Jury selection was expected to continue this week and next as the parties try to seat 12 jurors and six alternates. The key issue has been trying to select jurors who are willing to listen to both sides before deciding on the death penalty. PJC
Torsten Ove writes for the Pittsburgh Union Progress, where this first appeared. He can be reached at email@example.com. This story is part of ongoing coverage of the Pittsburgh synagogue shooting trial by the Pittsburgh Jewish Chronicle and the Pittsburgh Union Progress in a collaboration supported by funding from the Pittsburgh Media Partnership.