Buffalo, NY (WBEN) - The white man accused of slaughtering 10 Black people at the Jefferson Ave. Tops Market was scheduled to appear in court Thursday as authorities including the FBI continue to investigate the possibility of hate crime and terrorism charges.
Payton Gendron, 18, livestreamed the attack from a helmet camera before surrendering to police outside the grocery store. Shortly before the attack last Saturday, he posted hundreds of pages of writings to online discussion groups where he detailed his plans for the assault and his racist motivation.
A felony hearing is scheduled Thursday for the suspect, however legal experts WBEN surveyed believe that won't happen as prosecutors will have likely sent the case to a grand jury or already have an indictment against the suspect.
Attorney John Elmore says a felony hearing must be done within 5 days of an arraignment to remand the suspect. Elmore believes, in this case, a felony hearing will not happen. "I believe that the district attorney will present the case to the grand jury, and the prosecutor in the courtroom will hand the judge a certificate of affirmative Grand Jury action, and then the case will be transferred to Supreme Court," says Elmore, He says this keeps the defense from having the opportunity to cross examine witnesses.
Attorney Terry Connors, who represents families of the victims in civil matters, agrees with the DA's presenting the case to a grand jury before the felony hearing. He says that is actually routine. "it would be a real advantage (to the defense), because you'd have the witnesses under oath, you get a chance to hear what they have to say, you'd get a chance to probe those statements, their accuracy, their veracity, and it's a real good benefit to the defendant to have that type of an opportunity," explains Connors.
Both Elmore and Connors say the next step will be felony motions and discovery. "There's a lot of information that will be exchanged, because ultimately that is the venue where he will be tried or plead guilty," explains Connors.
Elmore says federal prosecutors have the death penalty on the table in their case. "The death penalty is supposed to be reserved for the most heinous criminals of the most heinous crimes. And if any case deserves death penalty consideration, under the law, this is one of them," believes Elmore.
The shooter faces charges of first degree murder.
Investigators have been examining those documents, which included a private diary he kept on the chat platform Discord.
At his initial court appearance last week, Gendron's court-appointed lawyer entered a plea of "not guilty" on his behalf.
The massacre at the Tops supermarket was unsettling even in a nation that has become numb to mass shootings. All but two of the 13 of the people shot during the attack were Black. Gendron's online writings said he planned the assault after becoming infatuated with white supremacist ideology he encountered online.
The diary said Gendron planned his attack in secret, with no outside help, but Discord confirmed Wednesday that an invitation to access his private writings was sent to a small group of people about 30 minutes before the assault began.
Some of them accepted the invitation. It was unclear how many read what he had written or logged on to view the assault live. It also wasn't clear whether anyone tried to alert law enforcement.
Buffalo Police Commissioner Joseph Gramaglia has said investigators were working to obtain, verify and review Gendron's online postings.
New York Gov. Kathy Hochul on Wednesday authorized the state's attorney general, Letitia James, to investigate social media platforms used by Gendron to determine if they were liable for "providing a platform to plan and promote violence."
