Accused Tree of Life gunman's attorney asks judge to void possibility of death penalty

PITTSBURGH (KDKA) — Jury selection is set to begin later this month in the trial of the man accused of killing 11 innocent victims at the Tree of Life synagogue in Squirrel Hill.

But the attorney for Robert Bowers has filed a motion that would prevent the trial from happening altogether: a plea bargain for life imprisonment to avoid the death penalty for her client.

On the eve of the trial, defense attorney Judy Clarke is asking the judge to void the possibility of the death penalty and asking the federal government to allow the gunman to spend the rest of his life behind bars. For Clarke, who has secured similar deals for other accused mass killers, an outcome like it would constitute a victory.

"To avoid the trial would be to obtain the agreement on the penalty of life imprisonment without the possibility of parole, that would be the best the defense could do in this case," said St. Vincent professor Bruce Antkowiak. 

"The win is to defeat the death penalty," he said. 

It's actually Clarke's second request to strike the death penalty, but she says she is presenting new facts to consider. Although she is not presenting a so-called insanity defense, in her motion, Clarke says the gunman has severe mental issues, including schizophrenia, epilepsy and other brain impairments. She also cites other cases where Jews and other ethnic groups were targeted by gunmen and the government decided not to pursue the death penalty.

The original decision to pursue the death penalty was made under the Trump administration and then-Attorney General William Barr. The motion seems to be appealing to the current Attorney General Merrick Garland to withdraw it.

But law professor Bruce Antkowiak says courts have held that in most cases, prosecutors have the discretion to pursue the death penalty and it's very unlikely the Justice Department will reverse itself.

"It would seem to me that a decision has been made to pursue the death penalty here. And again, in the absence of some evidence that that decision was made on invidious grounds, this case is going to go to trial," Antkowiak said. 

Judy Clarke's sole aim is to have her clients avoid the death penalty, something she's done for the Unabomber Ted Kaczynski and the Olympic Park bomber Eric Rudolph.