Judge approves independent DNA testing by defense in Tree of Life case

A federal judge has given attorneys for the man accused of killing 11 people at Pittsburgh’s Tree of Life synagogue four years ago permission to send biological materials from the defendant and victims to a lab in England for DNA testing.

Attorneys have argued over whether the testing should occur, who should be responsible for packaging and shipping the materials to the lab, and what should be done to protect the privacy rights of the victims and their families and ensure the integrity of the evidence.

In a case where there is no doubt about the identity of the suspect or the victims, some might wonder why there is any need for DNA testing at all.

But as with every other aspect of the synagogue shooting case, the parties involved — including the government, which is seeking the death penalty against Robert Bowers, and the defense, which is trying to save his life — are making sure that every legal step is taken to ensure their cases are unassailable and not vulnerable to appeals.

“In a case where the stakes are this high, the defense is completely justified — and would be negligent — if they didn’t test it,” said defense attorney Wendy Williams, who has been involved in at least five death penalty cases. “You don’t know what the government is going to use it for, so you have to be ready to defend it in any way.”

Bowers’ trial is scheduled to begin in late April. The court docket has been flooded with motions and responses from both sides as they move closer to jury selection.

Bowers, 50, is accused of entering the Tree of Life synagogue building in Squirrel Hill on Oct. 27, 2018, and killing 11 people who were there for Saturday morning worship. Bowers told first responders that he targeted the synagogue, which housed three different congregations, because he hates Jewish people. The government has charged Bowers with hate crimes.

On Aug. 1, the defense filed a motion seeking independent review and testing of several kinds of evidence in the case, including DNA.

In the filing, defense attorneys argued that because the government plans to use the materials at trial, there is a need for the defense “to conduct its own analysis of the evidence to assess both its admissibility and weight.”

The request will send the biological materials — 40 items “containing swatches and swabs of organic material, including 29 test tubes with swabs” — to Cellmark Forensic Services in Abingdon, England, for a new kind of testing.

“This testing will provide far more detailed DNA information than the government’s testing has produced,” the defense wrote in a court filing, adding that the testing would not destroy or damage the evidence.

The U.S. attorney’s office objected to the request, arguing to U.S. District Judge Robert J. Colville that the defendant has had access to the evidence and reports since 2019 and should have made a request for testing long ago.

“(Bowers) also has offered no explanation as to why such independent testing is necessary or relevant to any issue at trial,” the government wrote. “Tellingly, he has not requested ‘discrete’ items of evidence, as he previously indicated he would. Instead, he has requested that this court authorize the off-site analysis of all DNA and firearm/toolmark evidence, which is comprised of hundreds of items.”

The U.S. attorney’s office also said that the request for testing implicates the victims’ privacy rights.

“Robert Bowers was the lone assailant in this case, he was apprehended at the scene at the Tree of Life Synagogue, and he made statements admitting his conduct,” the government wrote. “It is undisputed that the deceased victims who were worshipping at Tree of Life on Oct. 27, 2018, were homicide victims killed by the defendant’s rifle fire. Neither Bowers’ identity, nor that of the crime victims, is reasonably in question. As such, the defendant simply cannot justify his request to conduct a novel type of independent DNA testing, outside the United States, in the face of substantial victim privacy interests.

“The identity of the defendant and the victims is beyond dispute.”

Saint Vincent College law professor Bruce Antkowiak said that makes him question why the government needs to present DNA evidence in the first place.

“I don’t know why they would want this in,” he said. “They don’t have a second shooter theory — or that Bowers was under attack by anybody and this was self-defense.”

Williams thinks she knows why the U.S. attorney’s office will use the DNA evidence.

“The government is going to use the physical evidence against the defendant to show his movements as part of aggravating circumstances — that he moved from room to room and what he did within the crime scene,” she said. “Trace evidence can show planning, deliberate movement through the synagogue. The government will use trace samples to try to make him look like a monster in the crime scene.”

Whatever the reason, Antkowiak said the government is intent on offering the evidence, which means the defense is obligated to have it evaluated.

“‘I have to fight this war on all fronts. I have to challenge everything,’” he said, describing the thinking of defense attorneys in capital cases.

Antkowiak noted that the government attorneys raised the issue of DNA evidence in the first place by saying they would use it in their case.

In his order granting the defense request for independent DNA testing, Colville agreed.

“While the court acknowledges, and is not unsympathetic to, the government’s argument respecting privacy concerns as to certain DNA evidence, the court also notes that it is the government’s intention to utilize such evidence itself at trial that triggers defendant’s entitlement to request independent inspection and testing of that evidence,” he wrote.

He continued, “The court expects that the defense will safeguard the privacy interests of the victims, witnesses and Mr. Bowers himself, in all appropriate regards, and trusts that an agreement respecting appropriate privacy protection protocols can be reached between the government and the defense.”

The order includes provisions prohibiting analysis of the victims’ genetic or ancestry information.

Williams does not see the request for DNA testing as distasteful or offensive — particularly given that the materials to be tested will be contained in slides or test tubes.

“It’s not like they’re taking a body and doing another autopsy,” she said. “You’re not talking about desecrating someone’s grave. “

But in a case that will be so closely followed by the public and media, Williams said, every action will be scrutinized.

“I think when you are entrusted with defending someone and saving their life, that you have to leave no stone unturned,” she said.