The Tree of Life synagogue in Squirrel Hill, Pittsburgh. (Capital-Star photo)
No criminal case should take four-and-a-half years to come to trial. This is especially so when all the relevant facts were instantly known at the time the crime was committed.
But that is how long it has taken for the Pittsburgh synagogue shooting case, which began with jury selection on Monday, April 24, to begin.
The murders took place on Oct. 27, 2018.
Observers have suggested that the reason the case took so long to come to trial is that it is a death penalty case.
This is obviously true to some extent. The death penalty always introduces delay. There is much more evidence that will be relevant in a capital case beyond the facts of the crime. The judge will grant the defense more leeway in preparation. Everyone will be much more careful because of the stakes involved.
Plus, in this case in particular, the defense has sought as much distance from the event as possible.
Indeed, without the death penalty, the case might have led to a plea bargain long ago. After all, the facts of the crimes could not be clearer.
But this reasoning obscures the more fundamental reason for the delay. This is not just a death penalty case. It is a federal death penalty case.
Federal jurisdiction over this case introduces enormous complications, both practical and legal.
The practical problem is that, unlike the state courts, a federal court is an unusual venue for a death penalty case. Federal death penalty procedures are not well worked out. Congress does not often return to the subject to streamline the process, as state legislatures do. The United States Supreme Court has not issued death penalty procedural rules, as many state supreme courts have done.
Nor are federal judges and prosecutors as experienced as their state counterparts in how to prepare and try capital cases.
The legal complications have to do with the nature of the American federal system. Unlike the states, Congress has no general criminal law authority. Congress can legislate a federal crime only where there is some special federal interest recognized by the Constitution.
If these murders had occurred on federal lands, for example, or even in several different states, such a special federal interest would be apparent.
The original federal indictment charged the defendant with 44 counts, including obstruction of the free exercise of religion resulting in death and bodily harm, the use of a firearm to commit murder and bodily harm during a violent crime and harm to a public safety officer.
The problem is that Congress has no obvious authority over any of these matters when they occur solely in one state and the public safety officers are not federal.
Congress does have authority to protect the free exercise of religion, but only when the threat to religion comes from the actions or inactions of state or local government.
In fact, the only reason this case was not thrown out of federal court years ago is that the Justice Department alleged that this crime affected interstate commerce.
As a strictly constitutional matter, this may well be true. It is probably the case that the guns used in the crime, or their parts, did travel across state lines.
Federal jurisdiction over this case is going to be an ongoing issue to be litigated. But even if the case survives in the end, that is a thin reed to justify such a mighty federal effort.
All of these considerations, and the unconscionable delay in the trial, raise the question, why is this case in federal court at all?
Ironically, there is a federal hate crimes statute and the defendant was charged under it in a subsequent indictment in 2019.
But the defendant was not charged under this law originally for two reasons.
First, the federal crime does not carry the death penalty. Second, the statute requires that the attorney general certify that there is a need for federal jurisdiction.
Both of these reasons point to the real reason this case is in federal court. The day of the crime, U.S. Attorney General Jeff Sessions vowed that the federal government would try these cases as hate crimes. President Trump said publicly, “People who do this should get the death penalty.”
At the time the crime was committed, former Pennsylvania Gov. Tom Wolf had initiated a self-proclaimed “moratorium” on executions in Pennsylvania, which the Pennsylvania Supreme Court had unanimously upheld in 2015.
While former President Donald Trump might have been willing to concede jurisdiction if this crime had occurred in a state where the death penalty might be effectively sought, he was not going to concede jurisdiction to Pennsylvania.
But, if the federal government had relinquished jurisdiction in 2018, this case would certainly have been tried by now with the probability that the defendant would already be sitting on death row. At the very least, the defendant would have been sentenced by now to life without parole.
And while it is true that Gov. Josh Shapiro has continued the Wolf administration’s policy of blocking executions, that action stands on very shaky legal grounds. The Pennsylvania Supreme Court in 2015 did not recognize the authority of a governor to impose an actual moratorium, only to issue a series of reprieves that might have the same effect.
Eventually, the court’s patience may run out and executions resume in Pennsylvania.
Meanwhile, a federal sentence of death, even if one is obtained in this case and not overturned on legal grounds, does not appear to stand a much better chance of ever being carried out.
So, Trump accomplished nothing but delay by his insistence that the federal government take over this case.
When President Joe Biden was elected, he probably felt it was too late for the federal government to change course. A change at that point really would have delayed the case further.
As someone who spent 13 years litigating on behalf of capital defendants, I don’t want to see anyone receive the death penalty. Nevertheless, whatever one thinks of the death penalty, if you have one, this is the sort of case in which that penalty should be considered.
But that understandable desire for a harsh punishment has backfired here. Putting this case in federal court in a misguided effort to obtain a death sentence has actually prevented any form of justice from being done in this case.
The Pittsburgh synagogue shooting case should have been in state court all along.
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