Defense attorneys for the man accused in the Tops Markets mass shooting are preparing for a potential challenge of the federal grand jury selection process.
Federal public defenders for Payton S. Gendron, who authorities have said is a white supremacist, have asked a judge to grant them access to court data about the pool of people from which grand jury members were selected. The panel indicted him in July on 27 counts, including 10 that make him eligible for the death penalty.
A federal public defender for the white supremacist accused in the Tops Markets mass shooting told a federal judge Monday that the defense hopes the court case can be resolved "short of trial."
Gendron's defense has hired an expert to analyze the procedures undertaken by the United States District Court of the Western District of New York, according to court filings.
Gendron's attorneys still say they hope to resolve the case without going to trial, but note they have an ethical duty to preserve "any and all conceivable errors" for appeal, they wrote in court papers.
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Gendron, 19, faces 14 federal hate crime charges and 13 charges of using a firearm to commit hate crimes for the May 14 attack at the Jefferson Avenue grocery store. He is accused of targeting Black people in the violence that left 10 people dead and three injured.
Counterterrorism researchers have repeatedly warned that a network of anonymous message boards and encrypted messaging channels are incubating the next generation of white supremacist terror.
Defense attorneys said in court papers that they are not requesting any information that could be used to personally identify anyone whose records are maintained by the court.
Gendron's attorneys did not respond to a request for comment.
When Gendron appeared in federal court in July after being indicted, one of his attorneys told the judge that the defense hopes the case can be resolved "short of trial."
Before the May 14 attack, Gendron posted a sort of diary online that laid out why he wanted to kill, as well as an unusual amount of tactical detail. He also livestreamed the massacre as it happened.
The U.S. Constitution grants those accused of crimes the right to a jury that represents a fair cross-section of the community, and courts must establish policies that do not systematically exclude members of certain groups, such as people of a particular race, from juries, said Anthony O'Rourke, professor at the University at Buffalo School of Law.
Experts estimate there are now 400 million firearms in civilian hands in the U.S. – more guns than people.
Such exclusion would violate the Sixth Amendment, and it makes sense for the defense to explore the issue, since Gendron may face the death penalty, O'Rourke said.
"They have an ethical obligation to raise any non-frivolous claim that they're able to raise and to diligently prepare a record for appeal," O'Rourke said.
Federal law gives defendants the right to access the data. Federal prosecutors filed objections Friday – a deadline set by U.S. Magistrate Judge H. Kenneth Schroeder Jr. – to aspects of the defense's request. The objections included that some of the defense expert's requests were overly broad.
Ten people were gunned down at a Buffalo supermarket May 14 in a horrifying mass shooting that officials were quick to label as "pure evil" an…
A spokesperson for the U.S. Attorney's Office declined comment.
The federal charges are separate from the charges – including domestic terrorism and 14 hate crimes – filed in Erie County Court against Gendron, of Conklin in Broome County. In that case, Gendron's other defense team has until Oct. 6 to file a notice of a psychiatric defense.
Parties are due back in federal court for a status conference on Dec. 9.
The Department of Justice has not said whether it plans to seek the death penalty.
Reach Aaron at abesecker[at]buffnews.com or 716-849-4602.
Aaron Besecker
News Staff Reporter
I'm a member of The Buffalo News' breaking news/criminal justice team. I've been reporter at the News since 2007.
