BUFFALO, N.Y. (WBEN) As the state prosecution of the 18 year old suspect
in the Tops shooting is advancing, following a 25 count indictment and arraignment this week, charges are also being considered for a federal case.
The big question is whether the death penalty could be part of a federal case.
Attorney Dennis Vacco, Partner with Lippes Mathias LLP on WBEN Friday,
said he didn't want to pre-judge what the Department of Justice decides to do, but added, "If they're not going to use it in a case like this, or a case like Texas, then take it off the books."
There is currently a moratorium on federal executions in the Biden Administration.
"In this instance, given the pre-planning, and given the clear motivation of prejudice and hate, and the number of people shot, this seems to me to be a ripe case for federal prosecution and application of the death penalty," said Vacco who is a former New York State Attorney General and former U.S. Attorney for Western New York.
The current U.S. Attorney for the Western District of New York, Trini Ross, is actively investigating the case, however, Vacco said the decision is not hers to make. The Department of Justice, all the way up to the Attorney General, will make the final decision.
"Just from the facts and circumstances and his motives and the pre-planning in the Buffalo case, I think the federal statute fits perfectly," added Vacco.
He said the Department of Justice will eventually have to look at the statute that is on the books and come to the determination that it was put on the books by Congress to serve as a deterrent for these types of offenses. Vacco noted that it becomes less of a deterrent if it is never used.
If there are two cases against the shooter, a state and federal case, how would it proceed? "They could be pursued simultaneously in separate jurisdictions," said Vacco. "Typically, in other types of offenses, one or the other takes the case. In this instance, I believe that the cases can be pursued simultaneously."
Change of venue
The court appointed defense attorney for the 18 year old suspect has already indicated that a jury pool in Erie County could be tainted and that it would be impossible for their client to get a
fair trial.
Erie County District Attorney John Flynn said after Thursday's arraignment, that he will vigorously fight a change of venue. "I'll fight it tooth and nail. This case needs to be tried here in Erie County," he said. "This happened in our community and any attempt to move it out of here, I will view unfavorably for a number of reasons."
Vacco expects a motion by the defense for a change of venue. "The defense team already signaled that by seeking a gag order on DA Flynn. In their application they raised the possibility of the need to seek a change of venue. So I do anticipate a motion in that regard," he said.
But at the end of the day, Vacco said the news and information about this crime is nationwide, and ultimately, he thinks the case will stay here.