Buffalo, N.Y. (WBEN) - The defense of Buffalo mass shooting suspect, Peyton Gendron filed a gag order to silence District Attorney John Flynn from speaking to media about Gendron's case.
One of Gendron's defense attorneys, Robert Cutting said that they take issue with a comment Flynn made from a May 16 press conference regarding the defense team withdrawing request for forensic examination where Flynn said, "So the mental health forensic part of this is a moot point." The defense called it, "objectionable commentary."
The defense also takes issue with an interview where DA Flynn discussed potential additional charges against the suspect.
WBEN's Legal Analyst and Attorney Paul Cambria notes the rule of speaking to the public about a case.
"New York has a specific ethical rule with regard to publicity," said Cambria.
"A lawyer who's participating in or has participated in a criminal or civil matter shall not make an extra judicial statement that the lawyer knows or reasonably should know, will be disseminated by means of public communication, and will have a substantial likelihood of materially prejudicing and adjudicated proceeding in the in the matter."
"So in other words, what it's saying is that a lawyer cannot make a statement that may have an impact on some jury or judge down the road, ultimately, in the case," said Cambria.
The defense doesn't want comments that could influence a jury, but is there a violation here?
"The argument that's being made is that for the district attorney to make a comment that met a mental situation is no longer the case, that may have potentially that kind of impact on a jury. Their argument is that anything that's basically other than saying, the person is charged with X, the person is presumed to be innocent and the court will decide everything in court is against the rule. That's their argument. Whether the judge determines that it was definitive enough to likely have that impact on a jury remains to be seen," said Cambria.
John Flynn told the media in the May 16th press conference the following, “I understand emotions are high. I understand the rawness of this matter. However, I do not operate in the court of public opinion. I operate in a court of law and this defendant is innocent until proven guilty.”
"I think that by the time that trial comes around that a lot of the publicity will be forgotten. Obviously, jurors are going to remember what they heard on the news. That'll have a lot greater impact than what one of the lawyers said," Cambria said.
In an hearing on Wednesday with Gendron in attendance, Judge Craig D. Hannah said that both parties were to refrain from speaking with media until a concrete decision has been concluded, which will take place in approximately a week.
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