Ron Kampeas
PITTSBURGH — A courtroom debate over whether the man who killed 11 Jews in a Pittsburgh synagogue should get the death penalty hinged briefly this week over the question of how many federal prisoners are Jewish.
Prosecutors are seeking the death penalty for Robert Bowers, who was convicted on 63 counts last month, including 22 capital charges. Bowers’ attorneys have been arguing that the federal Bureau of Prisons would likely consign Bowers to ADX Florence, the notorious Colorado maximum security prison known as Supermax.
Two former Bureau of Prisons officials who now offer paid testimony, principally for defendants, painted a picture on Wednesday and Thursday of an austere and isolated existence at the facility, with minimal interactions with other prisoners or the outside world.
The prosecution argued that Bowers’ confinement at Supermax was not as inevitable as the defense contended, and that he could easily end up at a prison with greater allowances, and might even be eligible for more amenable conditions as he aged. Bowers is 51.
Janet Perdue, who worked for more than 30 years as an administrator in the federal prisons system, said Bowers was a likely candidate for the Supermax because he committed a hate crime that got massive national and international attention. The prison has housed the Boston Marathon and Atlanta Olympics bombers, a founder of al-Qaeda and, until his death last month, Ted Kaczynski, known as the Unabomber.
“Given that his crime is a hate crime he may become the target of other inmates, I think,” Perdue said about Bowers. “Inmates would not take so kindly to seeing him in an open population and may cause him harm.”
The risk was not just to Bowers’ life, she said, but to the safety of prison officials who would have to respond to an attack.
Nicole Vasquez Schmitt, a prosecutor for the federal government, responded with a line of questioning that implied that prosecutors believed Bowers would not be a major target because relatively few prisoners share a religious identity with his victims.
“What is the Jewish population within the BOP?” Vasquez Schmitt asked Perdue, referring to the Federal Bureau of Prisons.
“I can’t speak to it exactly. I’d imagine it’s a fairly low number,” Perdue said.
“Would it surprise you to know it’s less than 3%?” the prosecutor said. No, Perdue said, it would not surprise her.
The Federal Bureau of Prisons does not share data about prisoners’ religious identities the way that it does about their race, ethnicity, gender and citizenship. Past estimates by groups working with Jewish prisoners, including the Chabad-affiliated Aleph Institute, have suggested that between 1% and 2% of federal prisoners are Jewish.
The Jewish population question was germane, prosecutors contended, because it undercut the defense contention that the rest of Bowers’ life would be austere in part because the nature of his crime would require his isolation, for his own safety, from other prisoners seeking to avenge his crime.
The judge in the case, Robert Colville, and lawyers for the defense and prosecution tentatively predicted after testimony was completed on Thursday that the final phase of the trial, to determine whether Bowers heads to death row, would wrap up with closing arguments early next week.
If a single juror rejects the death penalty, Colville must sentence Bowers to life without parole. The victims of the attack were Joyce Fienberg, Richard Gottfried, Rose Mallinger, Jerry Rabinowitz, Cecil Rosenthal, David Rosenthal, Bernice Simon, Sylvan Simon, Daniel Stein, Melvin Wax and Irving Younger. They worshiped at three congregations housed in the building at the time: Tree of Life, Dor Hadash and New Light.
Seven of the nine families who lost members during the massacre want Bowers to be executed. The widow of one of the victims has spoken out against seeking the death penalty, as have some others in the tight-knit Pittsburgh Jewish community, including some who knew the victims. Under Jewish law, the death penalty is an option for some offenses but tradition holds that it was rarely if ever meted out.
To make their case, prosecutors have sought to cut away at the defense’s calculation that Bowers’ likeliest destination in that case is Supermax, arguing at one point that Bowers is so compliant at his current prison that he is unlikely to be sent to the Colorado prison.
Guards from Butler County prison, where he has been held since shortly after his arrest at the scene of the attack, testified earlier this week that Bowers as a model prisoner who asks other prisoners to quiet down at night and whose favorite TV show is MTV’s “Ridiculousness,” where panelists react to funny home and street videos. Guards call him “Uncle Bob,” they said.
Prosecutors also suggested that the conditions of Supermax might in fact be Bowers’ preference. Another defense prisons expert, Maureen Baird, described Supermax as an austere and unforgiving environment where Bowers likely would be on lockdown for 22 or 23 hours a day, would have contact during his free time with no more than seven other prisoners, and would be allowed no more than five phone calls a month.
“The defendant seems to like living by himself,” Vasquez Schmitt said.
She also countered the testimony by getting the experts to note allowances: Prisoners at Supermax create art that is auctioned off outside the prison (maximum price: $100); they are about to get tablets programmed with music, games and limited entertainment; and they can have a pet fish.
The arguments come at the tail end of a trial that has transfixed observers since its first day at the end of May. The final phase of the trial started with victim impact statements from the families of the slain and others. It then moved into mitigation, with the defense bringing witnesses to describe Bowers’ troubled and at times violent upbringing.
It has taken bizarre turns. This week, the judge rejected a request by the defense to exhume the body of Randall Bowers, Bowers’ father who died by suicide in 1979.
The defense made the request after the prosecution brought up the assessment of a defense psychologist that Randall Bowers may not have actually been his father. Randall Bowers was diagnosed as a schizophrenic, and the defense has argued that Robert Bowers inherited the disease.
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