Judge denies Bowers' motion for government to produce evidence that it monitored his online activities prior to Tree of Life shooting

A federal judge on Monday denied a defense motion seeking evidence the government monitored Robert Bowers’ anti-Semitic activity online leading up to the 2018 Tree of Life shooting that killed 11 people.

In her ruling, U.S. District Judge Donetta Ambrose said the information Bowers is seeking is irrelevant.

“The government was not involved in the offenses charged and any alleged notice it may have had of the defendant’s online activities does not otherwise lessen or explain the defendant’s conduct,” she wrote.

Bowers’ attorneys filed a motion in March asking that federal prosecutors be required to turn over any evidence the government had monitored the man’s activities in the months before the shooting.

They alleged the information could be used as a mitigating circumstance in the event his case goes to a penalty phase.

The U.S. Attorney’s office is seeking the death penalty for Bowers, who is accused of opening fire the morning of Oct. 27, 2018, during Shabbat services at the Squirrel Hill synagogue that housed the Tree of Life-Or L’Simcha, Dor Hadash and New Life congregations.

If the case goes to a penalty phase, the government will present aggravating factors to support its argument that Bowers should be put to death. Aggravators the prosecution outlined include that he committed the acts after substantial planning and premeditation; he was motivated by religious animus based on expressions of hate and contempt toward the Jewish faith; and he chose the synagogue for the shooting with the intent to instill fear in the Jewish community.

The U.S. Attorney’s office noted in court filings that Bowers researched Dor Hadash online and shared his animosity toward Jewish people on Gab.com.

But Bowers’ defense attorneys argued the government’s awareness of the potential for a person to commit acts of violence — and the government’s capacity to deter such acts — could be a mitigating factor that a jury can consider in choosing life in prison for a defendant instead of the death penalty.

Among the examples of mitigating factors are: impaired capacity, duress, being a minor, having no prior criminal record, and severe mental or emotional disturbance.

But, in her nine-page opinion, Ambrose found the information being sought does not fall within the definition of mitigating evidence — even with a broad definition.

“The defendant seeks information which, if it exists, would suggest that the government had the opportunity to intervene and stop any conduct suggested by comments made on social media,” Ambrose wrote. “Such evidence would not tend to prove or disprove a fact or circumstance which a fact-finder could reasonably deem to have mitigating value. It does not point to any aspect of the defendant’s character or record or circumstances of the offense that would diminish the defendant’s moral culpability. Any knowledge that the government, in whatever capacity, may have had regarding the defendant’s activities on Gab.com prior to the crimes at issue, is irrelevant.”