Last week the trial of mass murderer Robert Bowers got underway in a federal court in Pittsburgh, Pa. Bowers is accused of killing 11 people in an antisemitic rampage at the Tree of Life Synagogue in 2018.
His is just the latest of a spate of recent death penalty trials for people charged with mass murder.
In each of these cases, opponents of capital punishment and death penalty defense lawyers carry a heavy burden of persuasion. If not these people, then who could ever deserve the death penalty?
Despite that burden, abolitionists and advocates can, and should, oppose the execution of even those who commit the most serious crimes, while recognizing that defending people whom death penalty supporter Robert Blecker calls “the worst of the worst” exacts a steep political price.
One obvious cost involves connecting the entire campaign against the death penalty with America’s most heinous killers. Concentrating efforts on the cases of infamous criminals runs the danger of diverting attention from the daily realities of capital punishment and the damage it does to our democracy and our culture.
And, despite their best efforts, death penalty defense lawyers often cannot save the lives of people like Robert Bowers.
Let’s look at the record.
First, as CNN notes, “It is unusual for a suspect in a mass killing to survive and go to trial, much less describe an attack in detail. Usually, the suspects die by their own hand or are killed by police, an outcome popularly known as ‘suicide by cop.’”
Second, as the research I am now doing shows, defendants in mass murder cases generally receive a death sentence. I have identified 23 such cases in the period since 1976.
In 15 of them, the defendant was condemned to die. In three others, the defendant pled guilty and did not receive a death sentence.
In the remaining five cases, defense lawyers succeeded in convincing the jury to impose a lesser penalty. What kinds of arguments did they make in those cases?
While no two mass murder cases are alike, there seem to be some general patterns.
The most important of them involves offering jurors a full and complex picture of the life that preceded and led to the killings and helping them to see the defendant as a human being not just the perpetrator of an inhumane crime.
Among the successes of capital defense lawyers in mass murder cases perhaps none was as surprising as the verdict and sentence in the James Holmes case. It is worth recalling as the Bowers trial unfolds.
In 2012, Holmes, then aged 24, killed 12 people and wounded 70 others who were at the movies in Aurora, Colorado. His victims were watching a midnight screening of The Dark Knight.
Holmes had donned protective gear before entering the theater. After he entered, he threw gas canisters and fired gunshots from an assault rifle, a shotgun, and a pistol.
Holmes was arrested outside the theater shortly after the attack. At his trial, he pleaded not guilty by reason of insanity, but the jury was unconvinced. It found him guilty on all 165 charges advanced by the prosecution, including first-degree murder, attempted murder, and explosives offenses.
He was defended by Tamara Brady, a Colorado State Public Defender who had extensive experience handling capital cases, and Daniel King who was then the chief trial deputy for the public defender’s office.
In the penalty phase of the Holmes trial, they identified more than 60 mitigating factors for the jury to weigh and leaned heavily into the issue of mental illness. They told a story of a child who was raised in a stable and loving home but began to experience significant psychological and adjustment difficulties at an early age.
Holmes’s problems began when he was 12 and his family moved to San Diego, California. According to an account published in CNN, he “had trouble making friends and began to withdraw into his room and his video games. His mother went door-to-door looking for playmates but, she said, the boys in their new neighborhood weren’t very friendly. She recalled how her boy ‘lost his joy.’ She felt guilty that she couldn’t make him happy.”
These were the first skirmishes in what would turn out to be a losing battle with what some called Holmes’s “broken” mind.
Holmes’s lawyers were direct in telling jurors that if they were to hold his life in their hands, they had to know everything about it.
A court-appointed psychiatrist testified that Holmes was “genetically loaded” for mental illness and that none of what happened in the theater where he committed mass murder was really his choice. Among other witnesses the defense presented were his parents and brother who testified that they loved Robert and would miss him if he were executed.
This is a textbook capital defense work, whether in mass murder or other death penalty cases. It is how attorneys go about the work of trying to save lives.
They do everything possible to humanize killers, bringing in people who knew them as innocent children, not monsters, and experts to educate jurors on developmental and behavioral issues. They have to help the jury understand that their clients can be legally sane but also mentally ill.
In the penalty phase of the Holmes case, Tamara Brady reminded the jury that “Mental illness can strike like cancer, without regard to your background, without regard to your status in life, without regard to how intelligent you are. And when James Holmes was born,” she continued, “he had this psychotic mental illness in his blood. It was in his DNA.”
In her closing argument, she stressed that “The death of a seriously mentally ill man is not justice, no matter how tragic the case is. Please, no more death.”
“I ask,” she said, “that you accept that we are all more and better than our own worst deeds.” In the end, she succeeded in securing a life without the possibility of parole sentence for Holmes.
Discussing the Holmes verdict, the Death Penalty Information Center explained that “The jury said they could not reach a unanimous decision on Holmes’ sentence…. After the trial, one juror said that the… deliberations were very emotional, and at the time jurors agreed to stop deliberating, one juror was firmly committed to a life sentence, with two other holdouts still undecided. She said, ‘The issue of mental illness was everything for the one who did not want to impose the death penalty.’”
Whether arguments like those in the Holmes case will save the life of Richard Bowers remains to be seen. But his defense lawyers would be well advised to study the Holmes case, if they have not already done so.
As abolitionists take up the cause of saving Bowers’s life and the lives of other people accused of mass murder, they need also to keep reminding people that, in the many less notorious cases in which the state seeks death as a punishment, the death penalty continues to legitimize vengeance, intensify racial divisions, promise simple solutions to complex problems, and damage our political and legal institutions.
Whenever it is used, the death penalty diminishes us all.