Jury to decide life or death for Tree of Life mass murderer

Cecil and David Rosenthal took solace in routine — particularly their attendance at Tree of Life worship services each Saturday morning.

Though both men were in their 50s, they functioned at around a preschool level, said their sister, Diane Rosenthal. Cecil, 59 when he died, was her older brother. David, 54, was younger than her.

She was the first to testify on behalf of prosecutors in the trial against convicted synagogue shooter Robert Bowers. A jury on June 16 convicted Bowers of all 63 federal charges against him, including killing 11 worshippers in an attack on a Squirrel Hill synagogue Oct. 27, 2018. This phase of the trial is a two-part process called the penalty phase, reported the Pittsburgh Post-Gazette. 

First they will determine if Bowers, 50, is eligible for the death penalty. If he is, they will decide if he should get it.

Ms. Rosenthal said neither of her brothers could read or write or tell time, but David liked wearing a watch anyway. They couldn’t process complicated situations. They could tie their shoes, she said, but not tight enough for them to stay tied.

“Whenever you saw them, you were constantly bending down to tie their shoes,” Ms. Rosenthal said.

Much of the first day of testimony focused on certain victims killed in the attack. Some were left particularly vulnerable due to their age or other conditions, prosecutors said — something Assistant U.S. Attorney Troy Rivetti said is an aggravating factor that lends itself to Bowers’ eligibility for the death penalty.

“The sheer magnitude of the crimes committed by the defendant on Oct. 27, 2018, is staggering,” Mr. Rivetti said in his opening statements.

He pointed to lead defense attorney Judy Clarke’s own admission in the opening statements in the guilty phase, in which she called the shooting “inexcusable” and “incomprehensible.”

“He murdered 11 innocent worshippers,” Mr. Rivetti said. “He killed victim after victim with his AR-15.”

In its eligibility phase opening statements, the defense offered its first glimpse of the argument they intend to make in their pitch to the jury to spare their client’s life.

Experts trained in mental health and brain imaging brought forth by the defense will show jurors evidence that the “structure and function” of their client’s brain is impaired. That impairment — its causes and effects — will help jurors understand where Bowers got his “delusional beliefs that led directly to the terrible events of Oct. 27, 2018,” said defense attorney Michael Burt.

“Hopefully what we’re going to present at this phase in the case is going to shine a greater light on how his distorted thinking came about,” he said.

To understand the impairment and all it allegedly wrought, he said, they will present the results of an electroencephalogram, or EEG, that experts say show a “strong indicator” that Bowers has epilepsy. That kind of diagnosis, Mr. Burt said, “can lead to and did lead to psychotic delusions.”

Other brain scans will show activity “consistent with someone who is schizophrenic,” he said, noting that those psychotic conditions might have persisted since childhood.

The defense team will begin calling witnesses Tuesday morning.

The government called eight witnesses, six of whom were family members of those the prosecutors called the most vulnerable of the 11 victims.

Joyce Fienberg, Rose Mallinger, Bernice and Sylvan Simon, Daniel Stein and Melvin Wax were all over the age of 70. Cecil and David Rosenthal,both had fragile X syndrome, a genetic disorder that causes intellectual and some physical disabilities.

There are three pieces to determining whether Bowers is eligible for the death penalty. One is that he was an adult at the time. The second is that he acted with a sufficient level of intent.

As to his level of intent, there are four types: he intentionally killed the victim; he intentionally inflicted serious bodily injury; he intentionally participated in an act that resulted in death; he participated in an act of violence knowing that act created a grave risk of death.

“We only have to prove one,” Mr. Rivetti said. “We will prove four.”

For the third piece in determining eligibility, jurors must agree that prosecutors proved at least one aggravating factor — for example, that Bowers targeted vulnerable victims.

Bernice Simon had undergone two knee-replacement surgeries and one hip replacement in the years before she was killed, leaving her in pain and with trouble moving around, testified her daughter, Michelle Weis. She used a cane and wore glasses.

“She couldn’t hurry,” she said.

Sylvan Simon, Ms. Weis’ father, had one hip replaced, suffered a knee injury and got shots in his eyes to treat macular degeneration. He had neck and back problems that left him unsteady and with difficulty walking.

Did he complain about the pain? Mr. Rivetti asked.

“Constantly,” Ms. Weis said with a smile.

Both were shot and killed in their usual pew. Bernice Simon was 84. Her husband was 86.

Joyce Fienberg had neuropathy in her legs and feet and couldn’t sit for long periods of time, said her son, Howard Fienberg. Her reaction time had slowed down, and it could sometimes be hard to get her attention if she was very focused on something else.

She was shot four times and found dead at the bottom of a stairwell below the Pervin Chapel where the Tree of Life worshipped. She was 75.

Despite his hearing aids, Jodi Kart said she still had to speak loudly for her father, Melvin Wax, to hear her. He was deaf in one ear and had only 50% hearing in the other, but they still spoke daily, and she visited him at his Squirrel Hill home at least once a week

He was sharp — sharp as a tack, Ms. Kart said, but he was becoming a bit forgetful and was “reaching that age where he should not have been driving. He couldn’t hear loud sounds well, and he certainly could not hear low, quiet whispers.

He was shot and killed as he peeked through two double doors in a storage hallway, unable to tell if the shooting was over and unable to hear the urgent whispers of those he was hiding with. He was 87.

Joseph Stein said his father, Dan Stein, was also losing his hearing. He had some trouble focusing, he said, and his concentration “just wasn’t as sharp” and “everything about him had slowed down.” He was found shot to death in the kitchen area off the New Light sanctuary. He was 71.

Rose Mallinger, in her 90s, was spry but slowing down, said her son, Stanley Mallinger. She’d fallen a few times, including one that led to hospitalization and a stint in rehabilitation, and so Mr. Mallinger had moved in to help care for her. He said she used a walker around the house. Outside of the house, she used a cane with one hand and held onto someone with the other.

She couldn’t hurry? Mr. Rivetti asked?

No, Mr. Mallinger said.

She was shot to death under a pew in the Pervin Chapel as she lay next to her daughter, Andrea Wedner, who survived the attack. She was 97.

Prosecutors rested for this phase of the trial around 2:45 p.m. on Monday.

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