PITTSBURGH — One after another, more than 100 potential jurors sat front and center in an ornate courtroom on the eighth floor of the federal courthouse in Downtown Pittsburgh.
One after another, they faced questions few will ever confront outside the hypothetical — a life-and-death decision that transcends thoughts of their own mortality.
Could you condemn another person to death?
Could you sign your name to that death sentence?
And one after another, they answered.
“This is something I have to live with for the rest of my life,” one said. “I don’t know that I could do that.”
“It is a heavy decision to take someone’s life,” another said. “I do believe, in this case, I would be able to listen to all the facts.”
As jury selection in the trial of accused Pittsburgh synagogue shooter Robert Bowers enters its third week, the death penalty has loomed large in the questioning of every juror. After two long, plodding weeks, prosecutors and defense lawyers are inching closer to seating a jury. The trial is set to being in mid- to late-May.
“What we do in a capital jury… is put people in the position where they have to reverse the lifelong conditioning and commitment we all make to the sanctity of human life,” said Craig Haney, a professor at the University of California, Santa Cruz who has spent decades studying death penalty cases and juries.
“[Jurors] are being asked to be part of a process where the end point might be to take a human life,” he said.
Lawyers and U.S. District Judge Robert Colville have questioned potential jurors for as short as a few minutes and as long as more than half-an-hour. The process is more intricate — and takes longer — than in many other cases because the final jury and the alternates on standby must be “death qualified.” That means to qualify, jurors must say they could at least consider a death sentence if they believed it was warranted.
Bowers, 50, faces 63 federal charges in the Oct. 27, 2018, mass shooting at the Squirrel Hill synagogue where three congregations worshiped: Tree of Life, Dor Hadash and New Light. It was the worst antisemitic attack in American history, with 11 worshipers killed across the three congregations: Richard Gottfried, Joyce Fienberg, Rose Malinger, Jerry Rabinowitz, Cecil and David Rosenthal, Bernice and Sylvan Simon, Daniel Stein, Melvin Wax and Irving Younger.
The 26-page questionnaire potential jurors filled out when they were initially summoned in March posed almost 100 questions. Question No. 73 asked them to rank how they felt about the death penalty on a scale of 1 to 10, from strongly opposed to strongly in favor.
But even some who put themselves on the high end of that scale on paper wavered when asked in court if they could sign their name to the paper that ultimately sends someone to death row.
On the second day of jury selection, lawyers questioned a Mercer County corrections officer who ranked himself as a nine on the questionnaire. He recalled initially seeing the shooting as “a definite death penalty case.”
Pressed about putting his name to a death sentence, though, he took a moment to think.
“This person is still a human being,” he said. “If I’m the person who has to make that decision on whether that person lives or I want them to be put to death? That’s tough.”
Haney said even the staunchest death penalty supporters give pause when rhetoric becomes reality.
“That’s when it moves from being an attitude or a political position that people are proud to align with to personal participation in the process,” he said. “The prospect of actually deciding that someone deserves to die and should die and you’re going to be one of the people to participate in that process — it’s a whole different level of moral gravity.
“Any thoughtful juror would find that daunting,” Haney added.
“Daunting” is the same word Bruce Antkowiak, a former federal prosecutor and defense lawyer, used to describe the dynamic. Once a potential juror takes an oath and understands what’s on the line, he said, the question takes on a different tenor.
“It’s one thing for a person to sit in the privacy of their home or sit around a bar having a drink with their friends saying, ‘This ought to happen, that ought to happen,’” said Antkowiak, who now teaches at St. Vincent College.
Some prospective jurors acknowledged they’d never given their stance on capital punishment much thought before receiving the questionnaire.
“Did you yourself really know in your mind your view on the death penalty?” one of the lawyers asked a potential juror during the opening week.
“No,” she said.
The questioning continued: “Could you actually, as you reflect, give the death penalty true consideration and recommend someone be sentenced to death? Could you sentence someone to death knowing they would be executed?”
The woman paused.
“If I felt it was necessary, I think I could,” she said.
Kenneth Parker, who chairs Duquesne University’s Department of Catholic Studies and has worked in jails and prisons for more than a decade, said that “in the abstract,” the death penalty “can seem rather black-and-white.”
“There’s a penalty assigned to certain offenses, people are guilty or they’re not, and the death penalty is applied as per the law,” he said.
But for most people, Parker said, the reality isn’t so cut and dried.
“It’s when the abstract becomes personal — when people realize they’re in the decider seat — that it becomes a matter that’s deeply emotional and problematic,” Parker said. “’Who am I to stand in judgment over another? How can I, with calm certainty, say this person deserves death?’”
“That’s a big weight to carry.”
Support for capital punishment has long been on the wane. About 60% of U.S. adults are in favor of the death penalty, according to a Gallup poll, down from about 80% in the 1990s.
“There’s a real grappling amongst some members of the public about whether having the death penalty, even in the most heinous cases, is appropriate,” said Haney, the UC Santa Cruz professor. “When I first started doing this work, people had a pat response: ‘No problem, I can do it.’ Now they’re much more reflective about it. They see the cons as well as the pros.”
Religion can also come into play, Parker said.
“Pope Francis has been clear that the death penalty is contrary to the original intent of Jesus’ teachings, so for Catholics, it becomes a moral issue,” he said. “’Can I, as a believer and committed Catholic, participate in a decision that may lead to the judicial death of another human being?’”
For some, the answer is yes.
“I think the church would say the death penalty is not an option,” potential juror No. 1 said last week.
Attorneys asked if she could consider the facts of the law and impose the death penalty if she believed the circumstances called for it.
Her answer: Yes.