Attorneys for families whose loved ones were killed May 14 want better access to evidence

A protective order requested by the U.S. Attorney's Office and granted by the federal judge in the potential death penalty case against Payton Gendron puts stringent restrictions on who can see the voluminous evidence in the case and even how they can see it.

Buffalo attorney John V. Elmore, who is representing the families of Andre Mackniel, Katherine Massey and Heyward  Patterson, said that according to the order, he can view the evidence only while at the federal public defender's office. 

The attorneys can look at the evidence on the public defender's computer screen only and in the presence of a member of the defense team. They are prohibited from downloading any of the information. They cannot print any of the documents. They can't use any kind of recording devices, including a pencil and paper.

"You can't take notes. We're not allowed to take notes," Elmore said.

Those restrictions have made it difficult to prepare any lawsuits, the attorneys said.

"That protective order has impeded our progress," Elmore said.

Trini E. Ross, the U.S. Attorney for the Western District of New York, said in a statement that her office cannot comment on pending cases. But, she said, "In general, protective orders are not put in place to frustrate, rather they are obtained to protect the integrity of a case."

The attorneys are hoping to work out a better way to handle the evidence.

A mountain of evidence was collected as part of the investigation into the mass killing in which 10 people lost their lives and three others were wounded. They include videos of the crime, crime scene photos and the killer's online communications. "There's 4.5 terabytes of information," Elmore said. "That is more than all of the books combined in the Library of Congress."

The attorneys for the families are planning to sue parties they believe enabled Gendron's killing spree – they could include gun and body armor manufacturers as well as social media platforms.

In addition, the Department of Justice is asking the families to weigh in on whether they want the government to pursue the death penalty against him – an opinion the lawyers say would be better informed if they could see the evidence.

Elmore and Terrence M. Connors, who is representing the families of seven victims who died in the Tops massacre, said they want to be able to have full access to the material.

"If it was handed over to us on a thumb drive, we could have it digitally organized," Elmore said. Software is available that the lawyers could use to sort through the digital trove of data. The attorneys would be happy to comply with rules that would prohibit them from sharing the data, they said.

"We are hopeful that the government will reconsider and share the evidence with the families," Connors said.

Gendron pleaded guilty to all state charges against him and was sentenced in February to spend the rest of his life in state prison without the possibility of parole.

The federal case against him is ongoing. The U.S. Attorney's Office is determining whether the government will pursue the death penalty against him.

In September, the U.S. Attorney requested and received a protective order from U.S. Magistrate Judge H. Kenneth Schroeder Jr. regarding access to the evidence, limiting access to the state

Brett A. Harvey, assistant U.S. Attorney, argued in a motion that protective orders are "routinely issued" by courts in the Western District "to protect against unwarranted disclosure of discovery materials to third parties."

Harvey argued that the order would protect the privacy of "family members of the deceased, survivors of the attack, and eyewitnesses to the attack," ensure a fair trial and allow those involved in the federal case to share material with those involved in the state case, which is now over. In court papers, the U.S. Attorney's Office said the material collected is "voluminous" and some of it is "sensitive, graphic and private."

Elmore and Connors say it's their understanding that Gendron's defense attorneys have no objection to the families having access.

Gendron's federal public defenders declined to comment on the matter because of the ongoing case.

But his attorney in the state case, Brian Parker, made clear at his sentencing two months ago that the state defense team had no objection to evidence being shared with the families as they pursue lawsuits that go beyond the criminal charges.

"We know that some of the families and their lawyers have asked for the information collected by law enforcement during their investigations of this crime," Parker said in court just before Erie County Court Judge Susan Eagan sentenced Gendron to spend the rest of his life behind bars. "We support that request. We hope the resolution of this case brings the day for that information to be shared closer."