Earnest is already facing the death penalty if found guilty in a parallel prosecution by the state — that trial is set for March — but the US Attorney-General is still apparently weighing how to proceed in the federal case.
Federal death penalty cases are rare — so much so that San Diego has never tried one.
Prosecutors and defense attorneys made a presentation to the Department of Justice's Capital Review Committee via teleconference on Sept. 28 on the possibility of pursuing death. The committee must then make a recommendation to Attorney General William Barr, who will ultimately decide.
During a court hearing Friday, US District Judge Anthony Battaglia raised the possibility of a new White House administration come January and asked how it might affect the pending decision. In that case, a new attorney-general would have to familiarize himself or herself with the case, but the process likely wouldn't be sent back to square one, said Assistant US Attorney Peter Ko.
A decision on the matter will greatly affect the course of the case, as capital cases are more complicated and require extensive investigation. Lawyers must essentially prepare for two trials — a guilt phase and a penalty phase. It is up to a jury to decide whether the ultimate sanction is warranted.
Earnest's defense team noted in a recent motion that the coronavirus pandemic has hampered "mitigation investigation critical to a meaningful penalty phase in a capital prosecution."
Until that decision is in hand, setting a trial date remains arbitrary, attorneys on both sides argued.
Still, Battaglia urged the attorneys to make as much progress as possible in the meantime, and he set a schedule for attorneys to begin to argue certain motions in the case.
"There are victims out there who deserve to see some progress made," Battaglia said.
Earnest is charged with 113 counts in the case. He has pleaded not guilty.
There were 54 people inside the Chabad of Poway the morning of April 27, 2019, when the shooting occurred, and the indictment counts each as a victim on charges of a hate crime and obstruction of free exercise of religious beliefs using a dangerous weapon resulting in death, bodily injury and attempts to kill.
Earnest is also charged with four counts of discharging a firearm during a crime of violence.
Lori Gilbert-Kaye, 60, was killed in the attack. Rabbi Yisroel Goldstein was shot in both hands, causing him to lose an index finger, while Noya Dahan, 8, and uncle Almog Peretz, 34, were wounded.
An additional charge — damage to a religious property using fire — relates to an arson at Dar-ul-Arquam mosque in Escondido a month prior.
Earnest, who lived in Rancho Penasquitos and attended California State University, San Marcos, was arrested shortly after the shooting after calling 911 and surrendering in a nearby parking lot, according to court records. A screed filled with racist and antisemitic statements attributed to him was posted just before the shooting in the online messaging platform 8chan, which is known for hosting extremists.
Defense attorneys Ellis "Trip" Johnston III and Patrick Burke indicated that they plan to challenge the constitutionality of the hate-crimes charges.
Earnest recently had a change in his defense team, as attorneys with Federal Defenders of San Diego had to recuse themselves in July for unknown reasons. The attorneys said in a filing that the conflict was not one that could be waived by Earnest and that details were protected by attorney-client privilege.
Another twist to the case came this summer when Goldstein, the rabbi who was injured, pleaded guilty to masterminding several financial frauds tied to Chabad of Poway that put more than $600,000 in his pocket. He had already been quietly under investigation by the FBI when the shooting occurred. The FBI is also investigating the attack.