Judge rules antisemitic statements by 10/27 defendant admissible at trial
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10/27 shootingCase update

Judge rules antisemitic statements by 10/27 defendant admissible at trial

A jury will be permitted to hear the statements allegedly made by the defendant while in police custody.

The Tree of Life building was the site of a deadly shooting on
Oct. 27, 2018. (Photo by Adam Reinherz)
The Tree of Life building was the site of a deadly shooting on Oct. 27, 2018. (Photo by Adam Reinherz)

A jury will be permitted to consider antisemitic statements made by the man accused of murdering 11 Jews in the Tree of Life building, pursuant to a Jan. 20 order issued by Senior U.S. District Judge Donetta Ambrose.

Ambrose’s 32-page opinion was issued in response to a motion filed by the defendant to suppress those statements on the grounds that police officers violated his right to remain silent when he was taken into police custody, inside an ambulance and while at the hospital. A two-day evidentiary hearing, which included the testimony of the police officers and medical personnel, was held in October 2021.

The defendant is charged with committing a hate crime resulting in death, along with dozens of other crimes. The government seeks the death penalty.

While police had not informed the defendant of his right to remain silent at the time the statements in question were made, those statements fell within the “public safety” exception to the Miranda rule, which applies when “the need for answers to questions in a situation posing a threat to public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination,” according to federal case law precedent cited by Ambrose.

The defendant’s statements included his response to an officer’s question as to “why he did it.” According to the officer’s testimony, the defendant replied that “he’s had enough, that Jews are killing our children, and he couldn’t take it anymore, that all Jews had to die.”

“Here, law enforcement officers faced an imminent threat to public safety beginning the moment the dispatcher announced the first 911 calls at 9:55 a.m. through the time Detective Shaw and Agent Patcher left Bowers at the hospital,” Ambrose wrote, adding that they were responding to a “chaotic and volatile scene,” confronting “open fire, high powered weapons, numerous victims, a confusing floorplan, a barricaded gunman, conflicting reports regarding the number of assailants, [and] the potential use of explosives.”

“The responding officers were at significant risk as were those congregants still hiding in the synagogue,” she continued. “Indeed, at least three officers were wounded during their response to Tree of Life. To ensure the safety of the officers at the scene and the surrounding community, they needed information about the quantity and location of firearms, whether any explosive devices had been placed at the synagogue or elsewhere, and whether the [the defendant] acted alone or with collaborators or accomplices as part of a larger attack.”

Likewise, Ambrose held that, while the defendant no longer posed a threat at the hospital, the questions posed by the officers while there “did not remove the potential threat existing elsewhere.”

“Officers needed to know whether his car or home presented any danger,” she found. “Additionally, to the extent that Detective Shaw or Agent Patcher inquired about threats still existing at the Tree of Life, I find credible their uncontradicted testimony that they were unaware at the time that the synagogue had been ‘cleared’ and declared secure and safe at 12:25 p.m.”

Ambrose also found that, in addition to the statements falling within the public safety exception, the defendant had “volunteered” several of his statements “and that such statements do not fall within the purview of Miranda.” Those statements include those he made “in response to a comment that he would be treated humanely, that ‘[t]hese people are committing genocide on my people, and I just want to kill Jews.’”

Earlier this week, the defendant’s attorneys filed a motion seeking a change of venue because of pretrial publicity in the Pittsburgh region. PJC

Toby Tabachnick can be reached at ttabachnick@pittsburghjewishchronicle.org.

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