Jury selection might be a misnomer.

In the case of the man accused of killing 11 people at a Squirrel Hill synagogue in 2018, experts say, the process might more aptly be called “jury deselection” or “jury rejection.”

Picking the right jury in a capital case is more about taking away the best prospective jurors for the other side than it is about getting the best ones for your own, prosecutors and consultants say.

“You have to assume the other side is just as good at jury selection as you are,” said Melissa Gomez, who runs a jury consulting company in Philadelphia and has selected more than 800 juries. “Odds are, the ones you really like aren’t going to be there.”

Pittsburgh synagogue shooting

Robert Bowers, 50, of Baldwin is accused of entering the Tree of Life synagogue building in Squirrel Hill on Oct. 27, 2018, and killing 11 people who worshipped with three congregations there — Tree of Life-Or L’Simcha, Dor Hadash and New Light.

Killed in the attack were Bernice Simon, 84, and her husband, Sylvan Simon, 86; brothers David Rosenthal, 54, and Cecil Rosenthal, 59; Dan Stein, 71; Irving Younger, 69; Dr. Jerry Rabinowitz, 66; Joyce Fienberg, 75; Melvin Wax, 87; Richard Gottfried, 65; and Rose Mallinger, 97.

Bowers faces 63 counts and, if convicted, could be sentenced to death.

Jury selection in his case began April 24, and concluded its second week Friday. Following questioning of 143 people over the past two weeks, 42 are eligible to be seated on the panel of 12 jurors and six alternates.

It is expected that once there are at least 58 prospective jurors who are deemed eligible, the government and defense will then be able to exercise their peremptory strikes, which allow them to strike a person for any reason.

In a federal, capital case, each side gets 20 peremptory challenges.

That means it is likely that the jury could be empaneled in the next several days.

Choosing a jury — particularly in a high-profile mass killing where capital punishment is in play — is a long, sometimes tedious process.

In the Bowers case, the U.S. District Court summonsed 1,500 people to the federal courthouse on Grant Street in March, and groups appeared twice a day for two weeks to fill out a 26-page questionnaire.

The questionnaires have not been made public on the court docket, but have been referenced extensively during individual questioning.

They include questions asking prospective jurors:

To rank their feelings about the death penalty on a scale of 1 (strongly opposed) to 10 (strongly in favor).

About their feelings about hate crimes.

Whether they believe a defendant ought to testify at trial.

About their feelings about psychology and psychiatry.

Whether they could listen to evidence about a person’s childhood to consider it in relation to sentencing.

The completed questionnaires were then provided to the parties and frequently referenced during individual questioning.

Out of all of the topics covered, experts say, the prosecution and the defense will focus most heavily on the prospective jurors’ opinions about the death penalty.

Jeffrey Frederick, a long-time jury consultant who has worked on more than 30 capital cases, said prosecutors will not only want to learn the prospective jurors’ views on the death penalty but whether they would also be able to implement it.

“Lots of people support it, but can’t do it themselves,” Frederick said.

In choosing which jurors to strike, he said, the government likely will target prospective jurors who say they strongly support life in prison instead of death, who support the concept of rehabilitation in prison and who say they are receptive to hearing mitigating evidence.

Frederick said the government also will be on the lookout for people who are anxious about serving or who are potentially emotional regarding expected graphic evidence and personal testimony.

On the other hand, the defense will be looking to eliminate prospective jurors who question whether Bowers has shown remorse and who believe that a defendant having a troubled childhood is just an excuse.

The defense also likely will strike jurors who talk about the waste of taxpayer money to house a defendant in prison for life, Frederick said.

“Both sides are going to have a type of juror that’s a little different,” said Nathan Williams, a former federal prosecutor.

The government will try to seat people on the panel who will follow the law but also have good common sense, he said.

Defense attorneys often look for people with an analytical mind or for those for whom the defendant’s life circumstances resonate, Williams said. They also will want jurors who are willing to stand strong on their opinions even when people argue against them.

“Neither side is interested in someone who has strong feelings they can set aside,” Williams said. “Those are risky.”

He said it’s also important to gauge prospective jurors’ maturity levels.

“Overly analytical jurors can be bad for the prosecution,” he said, because those people tend to dissect the evidence and apply it in a more rigid way.

Both sides will be cautious of prospective jurors who are too eager to serve: Is that person seeking notoriety? Do they have an agenda to steer the verdict one way or the other?

“When someone is eager to serve on the jury, it may be for the wrong reasons,” Frederick said.

‘Most critical part of death penalty case’

Williams led the death penalty case against the man who was convicted of killing nine people at a Charleston, S.C., church in 2015.

“Jury selection is, arguably, the most critical part of a death penalty case,” Williams said. “Your jurors can make a tremendous difference in a case like this.

“If you misread one, your whole case is disrupted.”

A lot of the strategy of jury selection has to do with the way the government puts on its case, said Gomez, who has consulted in the selection of more than 800 juries.

If the prosecution in the Bowers case focuses heavily on the antisemitic motivation in the attack, she said, it is likely jurors moved by that will also be moved by his claims of schizophrenia.

“There’s a balance there, because people who are sensitive to social issues of antisemitism may also be sensitive to a serious mental health issue,” Gomez said. “If they make this case about why this person massacred people, that’s going to be an opportunity for the defense to make this a stronger story about mental illness.”

But, she continued, if the government focuses more heavily on the fact that 11 people were killed and not the motivation for the crime, that will lessen the chance for the defense who “are looking for people who will be sensitive to the humanity in a very sick mind.”

In the Charleston church shooting case, Williams said, the government contracted with a jury consultant to assist with selection. The consultant was valuable in organizing data about the jury pool and tracking their answers during questioning, he said.

Social media presence of jurors

Among the consultants’ roles, Frederick said, is running prospective jurors’ criminal histories and deconstructing their social media presence.

That includes checking posts they may have made on news stories about a case or on comments they’ve posted on their friends’ pages.

While the questionnaires in the Bowers case ask prospective jurors whether they’ve posted about it on any social media sites, sometimes people forget or aren’t candid, Frederick said.

One prospective juror in the Bowers case wrote on his questionnaire that he’d never written about the case online, but the defense found a post he’d written on LinkedIn a few days after the synagogue shooting. It talked about showing support for the Jewish community in the wake of the attack.

“I forgot all about that,” the man said during questioning. “If I remembered, I would have said something.”

The defense made a motion to strike that person from the jury pool for cause. The judge granted it.

Frederick called the work of combing through prospective jurors’ social media history and backgrounds hard, cumbersome work.

But, Gomez said, the background research is designed for the attorneys to learn as much as they can about each prospective juror.

“What is the personality in front of me and what is the impact they’ll have on other people?” Gomez said.

Identifying traits like leadership qualities and whether a person is strong-willed and confident is important.

“It’s that balance between what’s the profile of the person and do I think this person will have the personality to bring other people to their side,” Gomez said.

Jury selection is both art and science, she said.

Gomez said the science comes from the work of creating a profile of a good juror versus a bad juror, collecting information for the database and correlating it and the jurors’ propensities to vote one way or the other.

Then, in the courtroom, the attorneys must apply the statistical profile to the person in front of them.

“You can’t know everything about a person, but you can use probability,” Gomez said. “You have to be able to look at the big picture rather than all the little pieces.”

It’s essential for the attorneys to look at jury selection as part of the trial — and not a separate entity.

“You can’t consider it as an island unto itself,” Gomez said.

And sometimes, she continued, trial strategy may have to change based on the composition of the jury.

“It is a fluid process,” she said.

When it comes time to use peremptory challenges that is where gamesmanship comes into play.

“There’s a strategy to the striking,” Gomez said.

Frederick said it’s complex.

Both experts said the sides will make a strike list with the help of their consultants — putting in order the prospective jurors they want to eliminate based on obviousness.

“As we get down the list, there are going to be people who both sides are uncomfortable with,” Frederick said. “I want to see who blinks first.”

“I try to play chicken with that person,” Gomez said, adding that when she wins, she gets a free strike.

“It’s a game of chess. It’s a game of psychology,” she said.

The defense will strike a lot of the ones the government wants, and the government will strike a lot of the ones the defense wants, Williams said.

“You end up somewhere in the middle,” he said.

The parties need to focus on their strategy and not worry about what the other side is doing, Gomez said.

While some strikes may be no-brainers, Frederick said, it’s often not as straightforward as the attorneys might like.

“You realize that humans are complex,” he said. “We know there are errors in our predictions.”

And what happens if they make a mistake?

“If someone gets on there with an agenda … they can take the whole jury with them,” Frederick said.

The most important role of the consultant, Williams said, is making sure attorneys use their peremptory challenges well.

“It is extremely stressful,” Frederick said. ‘We’re talking about life in prison or the death penalty.

“The stakes are high.”

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