HARRISBURG, Pa. – The Pittsburgh synagogue massacre defendant’s statements at the scene and at a hospital should be allowed at trial, prosecutors told a federal judge in a new filing, in part because concerns about public safety were a valid reason to keep questioning him even after he’d asked for an attorney.
The U.S. attorney's office and the legal defense team for Robert Bowers both made extensive arguments in recent days as U.S. District Judge Donetta Ambrose considers whether to grant his request to suppress statements made after he had been shot and was being treated for gunshot wounds to the leg and shoulder.
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His lawyers, who also filed a brief this week, said Bowers' assertion of his rights to remain silent and to confer with a lawyer should mean communications initiated by officers or what they overheard while he was being treated should not be used against him.
Officers may have had the authority to remain by Bowers as he was treated at a hospital for three gunshot wounds, but they should not have been allowed to listen in and record those conversations with medical providers or be permitted to use them at trial, they told Ambrose.
“Mr. Bowers had a reasonable expectation of privacy in those communications, and officers violated his Fourth Amendment rights when they purposely listened in on those communications, recorded them in writing, and now attempt to use those communications to secure a death sentence,” his lawyers wrote.
Bowers, 49, of Baldwin, Pennsylvania, faces more than 60 federal charges for the Oct. 27, 2018, shooting rampage at the Tree of Life synagogue building that left 11 people dead. He is accused of the deadliest attack on Jewish people in U.S. history.
His lawyers have sought a deal for him to plead guilty and get a life sentence if the government will take the death penalty off the table. That has not occurred, although in July, Attorney General Merrick Garland announced a moratorium on federal executions while his agency reviews policies and procedures.
Prosecutors, in a filing Tuesday, said much of the evidentiary dispute concerns questions to Bowers “of ‘why he did this’ and ‘why he gave up,’" saying his answers are admissible in court “because they were made in response to questions reasonably prompted by a concern for officer and public safety.”
Bowers' lawyers did not reply to a message seeking comment Thursday, and a spokesperson for federal prosecutors in Pittsburgh declined to comment on the court filings.
Bowers' filing says that at 11:03 a.m. he yelled he was hurt and wanted to give up. An officer told him, “crawl out or you will die,” and he complied, subsequently telling them his name and that he had left a rifle and handgun in the room but still had two handguns, on his waist and ankle. In response to an officer's question, he said he did not have a bomb.
Officer Clint Thimons then asked Bowers why he did it, which he testified was prompted by his own curiosity and human nature. Bowers responded that he hated Jews, accused them of bringing immigrants into the country and “killing our people," his lawyers wrote. Asked why he gave up, he told them “he had run out of ammunition,” his lawyers recounted.
Four medics who began treating him with tourniquets to his leg and arm wanted to move his handcuffs from his back to his front. His lawyers wrote that an officer held the muzzle of a gun to Bowers' head and told him that if he so much as "breathed on the medics” the officer would “shoot his brains out."
His lawyers argue Bowers was in police custody from the moment he began crawling out of a room and toward officers to surrender.
“Because his movement was effectively restrained to the degree associated with a formal arrest, he was ‘in custody’ for purposes of Miranda,” they wrote, referring to warnings customarily given to suspects by police about their rights, including the right to remain silent.
An hour after invoking his Miranda rights, they wrote, Bowers was asked by a detective if there was anything they should be concerned about at the synagogue. Bowers responded by itemizing the weapons he had.
He invoked his right to remain silent and to consult with a lawyer for a second time at 1:03 p.m., after which he responded to investigators' biographical questions. About 10 minutes after undergoing surgery under general anesthesia for about an hour and a half, investigators again asked to speak with him, his lawyers wrote. He again invoked his Miranda rights.
“They repeatedly asked Mr. Bowers if he wanted to make a statement, even though Mr. Bowers continually asserted his right to silence and his right to an attorney,” they wrote, arguing that was grounds to keep all of his statements out of any trial.