Defense in Tree of Life case asks whether government knew about Bowers' online rhetoric prior to shooting

Defense attorneys for the man charged with the Tree of Life killings are asking federal prosecutors to produce any evidence that the government monitored their client’s anti-Semitic online activity in the months leading up to the 2018 mass shooting.

In a motion filed Tuesday, lawyers for Robert Bowers wrote that the evidence must be turned over to them under discovery rules.

“Federal courts have consistently recognized, and capital juries have consistently found, that the government’s awareness of the potential for a person to commit violence, and the government’s capacity to avert violence, are mitigating circumstances of a capital offense,” the motion said.

Bowers is charged in U.S. District Court for the Oct. 27, 2018, shooting at the Squirrel Hill synagogue that housed the Tree of Life-Or L’Simcha, Dor Hadash and New Life congregations.

He opened fire during Saturday morning Shabbat services, killing 11 people there for worship. Two more were wounded, while four responding police officers were injured by gunfire.

Bowers has offered to plead guilty in exchange for a prison term of life with no chance for release. However, the government rejected the offer.

There is no trial date set for the case, as Bowers’ attorneys have been hampered in their mitigation efforts by restrictions imposed by the covid-19 pandemic.

In the motion filed on Wednesday, the defense wrote: “It is plain from the government’s filings that it has reviewed Mr. Bowers’ online activity, at least on Gab.com. What is not plain, and what the government has declined to provide in response to Mr. Bowers’ discovery requests, is whether the government was aware of his online activity prior to the shootings, as well as his exposure to the comments of others suggesting or promoting violence or expressing anti-Semitic comments on Gab.com.”

Among the information the defense is seeking:

• Whether Bowers or any other user on Gab.com was monitored or identified in 2018 as a person who posed a threat of mobilizing to violence
• Whether any covert law enforcement or national security contact was initiated with him or any other Gab user in 2018
• Whether any federal program or law enforcement agency investigating white supremacy or online radicalization identified him before the synagogue shooting as a threat to the Jewish community in Pittsburgh
• Whether those entities were advised of the potential threats

“Specifically, the government’s awareness of the potential for a person to commit violent acts, and the government’s capacity to deter such acts, are mitigating sentencing factors,” the defense wrote. “Such government awareness or capacity to deter does not bear on guilt-phase culpability; it does not shift blame or excuse or justify conduct. Rather, it is relevant to a jury’s determination of whether the death penalty is appropriate.”

To seek a death sentence, the government is required to list aggravating factors. In Bowers’ case, they included that he committed the acts after substantial planning and premeditation, that he was motivated by religious animus based on expressions of hate and contempt toward the Jewish faith; and that he chose the synagogue for the shooting with the intent to instill fear in the Jewish community.

As part of its support for those aggravating factors, the motion said, the prosecution included Bowers’ internet activity on Gab.com, a social media site known for allowing extremist views.

Specifically the government noted that Bowers researched the Hebrew Immigrant Aid Society and affiliated congregations, including Dor Hadash; “that Mr. Bowers made communications evincing animosity toward people of the Jewish faith on Gab.com; and that Mr. Bowers’ activity on Gab.com evinced a ‘desire to broadcast his actions to an intended audience’ and an ‘awareness of how his actions would be perceived by the public.’ ”

In addition, the motion said that prosecutors have also asserted that Bowers engaged in chats on Gab where he communicated and offered assistance to those who shared his views.

In further explaining its request, the defense notes that the government has been monitoring social media sites relative to anti-Semitism and white nationalist groups for more than 10 years and cites several examples. They include one in the Western District of Michigan, where six men were charged in October in plot to kidnap Gov. Gretchen Whitmer.

“For years, the government has sponsored the development of software and other tools to track the online activity. In public reports, the government made clear that this threat was significant and should be a focus of law enforcement monitoring and intervention,” the defense motion said. “Based upon the documented monitoring by federal agencies over an extended period of time – both prior to and after Oct. 27, 2018 – there is good cause to believe that the federal government was aware of Mr. Bowers’ online activity, and the activity of others with whom he interacted on Gab.com, during the months before the shootings at the Tree of Life Synagogue.”

Prosecutors have until April 21 to respond.