BUFFALO, N.Y. — Attorneys for the white supremacist gunman who killed ten Black people at a Buffalo supermarket told a judge Thursday that the federal charges against him should be dropped because the grand jury that indicted him did not include enough Black people and other minorities.
Payton Gendron did not attend the hearing, where his lawyers claimed that his constitutional rights to a grand jury drawn from a diverse community were violated.
At the start of the hearing, U.S. District Judge Lawrence Vilardo observed that Gendron’s objection to the presence of white people on the panel appeared “a little incongruous” in the hate crimes case. He did not immediately rule on the motion.
Gendron could face the death penalty if convicted of the 2022 mass shooting at a Tops supermarket, which he targeted because it was in a predominantly Black neighborhood. Those killed ranged in age from 32 to 86. Three others were injured.
Gendron is already serving a life sentence without the possibility of parole after pleading guilty in November 2022 to multiple state charges, including murder.
A trial on the pending federal hate crime and weapons charges is set to begin next year. If Gendron is convicted, the Justice Department has stated that he will face the death penalty.
Attorney John Elmore, who represents some of the victims’ relatives in lawsuits, said Gendron’s lawyers are doing everything they can to keep him alive. He stated that attempts to change the composition of juries are rarely successful, despite the fact that he frequently sees juries lacking minority representation.
“It is very ironic that attention to this problem is being brought out in this case, where Payton Gendron committed a racially motivated homicide,” he said via telephone following the trial. “But this has been a persistent problem in our courts that needs to be addressed.”
In a court filing, Gendron’s lawyers argued that Black and Hispanic people, as well as men, are “systemically and significantly underrepresented” on juror selection lists in the Buffalo area.
“To illustrate this point, the grand jury that indicted Payton Gendron was drawn from a pool from which approximately one third of the Black persons expected and one third of the Hispanic/Latino persons expected,” according to Gendron’s attorneys. They claimed that the data sources used by a vendor to compile the lists were not preserved, which exacerbated the problem.
“We don’t know what the vendor did,” Assistant Public Defender Sonya Zoghlin explained. “More importantly, the vendor doesn’t know what he did.”
According to Vilardo, the addition of two more Black people to the 60-member grand jury panel would have balanced the panel.
“Can’t that be the result of an accident,” the judge inquired, rather than systemic exclusion.
Assistant U.S. Attorney Caitlin Higgins opposed the motion, arguing that at worst, the issue is a “technical violation,” not grounds for dismissing the indictment.
The federal law governing jury selection “doesn’t entitle the defendant to a perfect representation,” she stated.
Zoghlin stated that the issue extended beyond the panel that ultimately heard Gendron’s case and included the exclusion of certain groups from the selection process, including inactive voters.
In a written filing, the US Attorney’s Office stated that Gendron failed to demonstrate a systematic underrepresentation caused by the district’s jury plan. They wrote that any racial disparities were within accepted guidelines and were not the result of the selection process, which draws from voter, driver, tax, disability, and unemployment rolls.
Higgins said courts have routinely rejected similar challenges; Vilardo said he was unaware of any such motions being granted in cases with similar disparities in New York state’s federal courts.
Gendron’s attorneys argued in an earlier filing that he should be spared the death penalty because he was 18 years old at the time of the shooting, when the brain is still developing. That motion is pending.
