Buffalo, N.Y. (WBEN) - The 19-year-old who pled guilty to carrying out the Tops shooting on Jefferson Avenue back on May 14 will be back in state court this Wednesday for his sentencing.
Payton Gendron pled guilty to all 25 counts he faced as a result of the mass shooting back on Nov. 28, 2022. His one count of committing a domestic act of terrorism he pled guilty to automatically carries with it a life sentence in prison without parole.
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While Wednesday's sentencing may seem like just a formality in the legal process with this case, it will be an opportunity for the victims' families to speak directly to Gendron after he killed 10 Black people and wounded three others in a racially motivated shooting.
"The expectation is the presiding judge will allow members of the family to speak at the court proceeding prior to the sentencing," said Attorney Terry Connors, who represents seven of the 10 families who lost loved ones in the shooting. "There is a provision in our criminal procedure law that allows a victim or a victim's family to provide input to the judge for sentencing, and they have the right to speak and express the impact on their lives."
Connors is certain that a number of the family members will be speaking at Wednesday's sentencing, including family members of those who survived the shooting.
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"It's going to be a very emotional time where victims will face Mr. Gendron, and tell him about the pain and infliction that the senseless act has caused their family," said Attorney John Elmore, who represents the families of three victims who died that Saturday afternoon. "I think some of them will be very angry, some will be very emotional."
"There will be a significant amount of time devoted to hearing what the family members have to say," Connors added. "Some of them may decline, because it's just too emotional. It's just too tough for them to be re-victimized by the actual proceeding, and to live through that horrific day that they experienced on May 14."
Once the families have gotten their chance to speak and address Gendron at the sentencing, his lawyers will then make a statement on his behalf, and the judge will then sentence him to life in prison without parole.
Then on Thursday, Gendron and/or his attorneys will appear in federal court for another status conference. Gendron had the right to not appear during his last appearance at the Robert H. Jackson U.S. Courthouse back on Dec. 9, 2022.
As a result of the preliminary status conference more than two months ago, Judge Kenneth Schroeder was hoping the defense team for Gendron would utilize the time allotted to them to operate in the interest of justice and conduct pre-trial negotiations to try and avoid any need for a trial.
The next court date that was scheduled during the status conference was originally set for March 10, 2023.
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So why has this status conference been scheduled just one day after Gendron's sentencing at the state level of court? Elmore seems to have a hunch for that reasoning.
"He's going to be a sentenced prisoner, and he's going to be in the custody of the New York State Department of Corrections. Typically, he would be sentenced to a maximum prison that could be somewhere up in the Adirondacks or it could be somewhere downstate, but typically a long ways from Buffalo. Because these federal charges are still pending, the federal public defenders are asking that he'd be placed in the custody of U.S. Marshals so that they can have access to him. That means that he would be housed in a local jail," Elmore said. "Typically federal prisoners that have cases pending are held in a Niagara County jail or Chautauqua County jail, but they want to make sure that while these federal charges are pending, where he's facing the death penalty, that they have access to him so they don't have to travel six, eight hours, five hours to have access to visit them. They want him in a nearby facility."
While there hasn't been any definitive statement with respect to what will transpire at Thursday's court proceeding, Connors says the prosecutors in the federal system have reached out to the family members looking for their input or, at least, to discuss with them their feelings about where he will be held going forward.
At this point, it is still uncertain whether or not the federal government will go forward with pursuing the death penalty with Gendron's case. That final decision will lie with U.S. Attorney General Merrick Garland, but no timeline has been given for any sort of decision.
Gendron's defense counsel has stated if the death penalty is not pursued going forward, the shooter would be willing to plead guilty to all counts he faces in federal court, and serve prison time concurrent with his state sentence.
Despite there being a moratorium still in place under the Biden administration against pursuing the death penalty at the federal level, both Elmore and Connors believe the death penalty is still on the table with Gendron's federal case.
"The process would be his lawyers are going to make a presentation to the local prosecutors in the U.S. Attorney's Office, making a case for life, and then they'll make a recommendation to the panel of attorneys in Washington, D.C., and eventually, the lawyers will make a presentation to Washington D.C.," Elmore said. "It'll be the ultimate decision of the Attorney General whether or not he is offered an opportunity to plead guilty and get life without parole, but that determination has not been made yet."