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Attorneys for accused Tops killer seek court order to silence DA about case

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john flynn gendron

District Attorney John Flynn asked a judge on Wednesday to deny a defense motion barring him from making comments about the Payton Gendron case, but said he was open to having a discussion with the judge and the defense about guidelines for future comments.

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Defense attorneys for the man accused of killing 10 people at Tops Markets earlier this month want a judge to order Erie County District Attorney John Flynn to stop making public statements about the case.

Attorneys for Payton Gendron, a self-described white supremacist, asked Buffalo City Court Chief Judge Craig D. Hannah to bar the county's top prosecutor and his assistant prosecutors from making comments outside of court proceedings because of the potential to taint the jury pool.

"Given the nature and scope of the publicity that has been attached to this case so far, we are gravely concerned that when the time arises and it’s necessary for a jury to be selected and preside over the trial of Payton Gendron, our client, that that jury pool will be tainted and poisoned in such a way that it will be impossible for him to get a fair trial," defense attorney Robert Cutting said in court Wednesday.

While many other public officials have commented on the case, Flynn's responsibilities "are above and beyond those of your average elected official," since he is a participant in the judicial process, Cutting said.

Cutting said the district attorney has made no "objectionable" comments since Gendron's court appearance on May 19.

Hannah did not make a ruling at Wednesday's hearing. The judge said he expects to issue one in about a week. But he ordered prosecutors and defense lawyers to refrain from speaking publicly about the case until the parties meet to discuss guidelines for public statements going forward.

Flynn, who does not typically appear before judges at hearings, was in court to argue against the defense's motion.

Flynn asked the judge to deny the motion, but he said he would agree to an alternative solution presented by the defense for a dialogue with the judge about what constitutes proper public comments concerning the criminal case as it proceeds.

Erie County District Attorney John Flynn urges a judge to reject a motion from Payton Gendron's defense attorneys to bar further public comments on the case. Flynn said he would agree to an alternative solution – that the attorneys meet for the judge and set up guidelines for future commentary.

Flynn told the judge the defense's request "is really a moot point." Flynn said he may make just one more public comment on the case before it concludes – at a possible arraignment for Gendron upon potential indictment by a grand jury.

At Wednesday's motion hearing, Gendron wore standard orange jail garb and a white face mask as he sat next to his attorneys in court.

In court papers, Gendron's attorneys pointed to two statements Flynn made in the days following the May 14 mass killing. In court on Wednesday, Cutting said while the papers included only two examples, "there probably could have been several more that were included."

The defense's request essentially applies only to Flynn, as assistant district attorneys are prohibited under office policy from speaking with the news media.

Gendron, 18, has been charged with first-degree murder in the mass slaying at the Jefferson Avenue grocery store.

The first comment from Flynn cited by the defense came during a news conference two days after the attack about the defense team's withdrawal of a request for a psychiatric evaluation, known as a forensic examination.

According to documents filed in court, Flynn said, "I don't need to ask for it myself, so I'm not going to ask for it. The judge has the ability – sua sponte – on his own, for those who didn't take Latin, to order the investigation, a forensic. He did not feel the need to do that, so the mental health forensic part of this has now become a moot point, and is now off the table."

The defense team, led by Brian K. Parker and also including Daniel DuBois, described the comment in court papers as "inaccurate and deeply prejudicial."

Flynn told the judge the comment was taken out of context, and that he was only referring to any mental health issues being off the table "for now."

The second statement attributed to Flynn came during an interview on Fox News, in which defense lawyers say the district attorney suggested their client had committed several crimes that he hasn't been charged with.

In its response, the District Attorney's Office said the defense's motion "contains no explanation of how or why this statement should be considered improper."

Flynn told the judge he was only describing the contents of publicly available statutes and that his office was "generally looking at them."

Flynn also said that he has publicly stated Gendron is now merely accused and should be presumed innocent.

Reach Aaron at abesecker[at]buffnews.com or 716-849-4602.

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