Lawyers for accused Tree of Life mass killer Robert Bowers say they do not intend to seek an insanity or intellectual disability defense, but they still want more time to gather mental health evidence.
U.S. District Judge Donetta Ambrose on Friday granted their request for a delay and pushed back the deadline from Monday until Jan. 31 over the objections of prosecutors.
Mr. Bowers is accused of gunning down 11 worshippers at Tree of Life synagogue on Oct. 27, 2018. The government is seeking the death penalty. His lawyers are trying to negotiate a plea that will spare him execution.
Judge Ambrose had previously set a Nov. 15 deadline for the defense to file what's known as a Rule 12.2 notice, which requires a defendant to notify the U.S. attorney's office of an intention to pursue a mental health defense in order to give prosecutors time to have their own experts do an evaluation.
The defense team — Michael Novara, Elisa Long, Michael Burt and Judy Clarke — on Tuesday filed a motion saying they aren't seeking an insanity defense.
They also said they won't pursue a defense under a case known as Atkins v. Virginia, which bars the execution of people with intellectual disabilities as cruel and unusual punishment.
But, they said, the team still "respectfully requests that the court allow [Mr. Bowers] the necessary time to complete its mental health expert work — work that is well underway — by resetting" the Monday deadline. The lawyers asked the judge to give them until March 1 to present mental health evidence pertaining to Mr. Bowers' guilt and until 60 days before the start of a trial to present similar evidence as to the death penalty phase.
The judge didn't give them the March date but granted a delay until Jan. 31. She also granted the second request.
In a separate motion, also filed Tuesday, the lawyers asked that they be allowed to file a document outlining the mental health evidence under seal and without the U.S. attorney's office being allowed to see it.
The judge denied that request.
The prosecutors — Soo Song, Troy Rivetti and Julie Gegenheimer — had argued against any more delays, saying additional extensions are not justified in a case that is already three years old.
"The defendant continues to labor under the false impression that it is up to him — and not this court — to decide the appropriate time to provide the required notice under Rule 12.2," they said in a motion filed Thursday. "In the defendant’s view, if he believes he needs more time, then he is necessarily entitled to more time. Of course, if that were true, this case would grind to a halt."
The prosecutors leveled accusations, as they have in the past, that the defense is dragging out the case.
"The court has also already given the defendant repeated extensions, ample time, resources, and firm directives to the defendant to make good use of this time and complete his mental health investigation and examinations," they wrote. "Meanwhile, the defendant’s delay continues to cause the government grave prejudice and to grievously impact crime victims."
The prosecution had also asked Judge Ambrose to deny the defense request to file the secret mental health document regarding Mr. Bowers, saying such ex parte motions — in which one party can't see what the other filed — are disfavored by the courts.
"More importantly," they said, "this court does not require an ex parte sealed filing to conclude that, after more than two years of litigation on the same issue, it has fully considered all defense arguments in setting the deadline and provided the defendant with ample time, resources, and notice to meet that deadline."
First Published: November 12, 2021, 1:56 p.m.
Updated: November 12, 2021, 8:52 p.m.
