Buffalo, NY (WBEN) - Attorneys for a white gunman who killed 10 Black people at a Buffalo supermarket want to move his death penalty-eligible trial to New York City, writing in a court filing that it would be difficult to seat a diverse and impartial jury in the upstate city.
About 85% of Buffalo’s Black residents live in East Buffalo, where the shooting occurred, Payton Gendron's lawyers wrote Monday, and many would be prevented from serving on the jury because of ties to the case.
Attorney John Elmore, who represents families of some of the victims, says this typically happens when there's a lot of publicity, and in particular in a death penalty case. "It's a very similar motion was made in Pittsburgh, where Robert Bowers was was accused and and convicted and actually sentenced to death of killing 11 Jewish congregants in the at the Tree of Life synagogue, the lawyers made a motion for a change of venue. The judge denied that motion. The case was actually tried in in Pittsburgh," explains Elmore.
Elmore believes such a filing ins premature. "I can tell you that typically a change of venue motion is granted during jury selection, when it becomes clear to the judge that they cannot find enough jurors that were predisposed for a conviction or predisposed to impose the death penalty and but that's usually found during jury selection," says Elmore. He notes it appears as though 1,200 questionnaires are going to be sent to prospective jurors. Those questionnaires have not been sent out or filled out, according to Elmore.
Elmore says a judge will likely reserve decision until he can determine if it's impossible to get a juror here who has been not been tainted by coverage of the shooting. If it's approved, Elmore says the trial would still be held in New York. "We are in the Western District of New York, which covers the most western counties in in New York State, there's the Northern District, which is like Albany and Syracuse, and then there's the southern and eastern district, which is like in New York City, Long Island and Westchester. So it could be in any one of those other three areas," says Elmore.
Elmore says the Bowers trial took five years to get to trial. He says this case could take just as long. "I know there has been a motion for to change the trial date, which is scheduled in September, to a year. It's very likely that because of the amount of evidence, the amount of complicated decisions that the court is going to have to decide between now and jury selection, that the court may delay the trial a little bit, I think a year is probably unlikely," says Elmore. He notes families of the victims are anxious to get to trial and have finality.
Gendron carefully planned and carried out the shooting with a semiautomatic rifle "to prevent Black people from replacing white people and eliminating the white race, and to inspire others to commit similar acts,” according to a criminal complaint. A portable camera strapped to his tactical-style helmet livestreamed as Gendron roamed the parking lot and aisles of the store, firing on shoppers and employees.
Those killed ranged in age from 32 to 86. Three people were wounded and dozens of others in and outside the neighborhood's only grocery store escaped injury.
The U.S. Attorney's office in Buffalo did not immediately comment.
Gendron is serving a sentence of life in prison without the possibility of parole after pleading guilty in November 2022 to multiple state charges, including murder. Then-Attorney General Merrick Garland last year announced the government would seek the death penalty in a parallel federal case charging him with hate crimes and weapons counts.
Gendron's attorneys, in an earlier filing, argued that Gendron should be exempt from the death penalty because he was 18 years old at the time of the shooting, an age when the brain is still developing. That motion is pending.
The trial is scheduled to start in September.