BUFFALO, N.Y. (WKBW) — Ahead of his federal death penalty trial, the attorneys for the Buffalo mass shooting gunman are asking the court for a change of venue.
Payton Gendron shot and killed ten Black people in Tops on Jefferson Avenue in May 2022. Three other people were hurt in the shooting.
Prosecutors say he fired 60 shots before he was finally taken into custody by Buffalo Police.
Gendron has been sentenced to life in prison on New York State hate crime charges. His federal death penalty trial is expected to begin in September.
Defense attorneys argue Gendron should have the trial moved from Buffalo to New York City because "...a prejudice against the defendants exists in the [Western] district that [Payton Gendron] cannot obtain a fair and impartial trial..."
In a 43-page motion filed Monday in the Western District of New York, Gendron's attorneys write "...due to the overwhelming amount of pretrial publicity, combined with the impact of this case on Buffalo's segregated communities of color, it is impossible for Payton Gendron to select a fair and impartial jury in the Western District of New York."
Next month will mark three years since the mass shooting.
"There was extensive coverage of the fact that video of the shooting itself was available on the internet," his defense attorneys say. "There was media coverage of the video of Gendron’s guilty plea and sentencing where his victims expressed their agony and suffering. There has been extensive coverage of the stories of the surviving victims, much of which includes information that will be inadmissible at trial."
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As a result, his defense attorneys suggest there are deeper implications.
"Given the absolute finality of the death penalty there is a “heightened need for reliability” in capital cases," they write.
The defense also says, "When the government has been responsible for the media coverage, it has been at the highest levels."
Attorneys write, "it is likely that a large percentage of potential Black jurors will be excludable for cause."
They say it's because of a long history of segregation in "East Buffalo," the number of victims and the "centrality of the Tops Market as both a place to find sustenance and a community meeting place..."
We spoke to attorney John Elmore about this new development on Tuesday.
"My legal training tells me that this motion is premature, but I'm not surprised that the defense attorneys filed it," Elmore said. "The defense is going to file any motion that they can file to save their client's life, and by filing it now, even if the court denies it, they can refile it again later on in the proceedings."
Elmore said this motion draws parallels to the Pittsburgh synagogue shooting case, where the defense team also asked for a change of venue.
"It was denied, and there was a trial," Elmore said.
We also spoke to attorney Terry Connors, who said he believes the venue will not be changed.
"You'd be surprised how very few cases succeed in venue changes, and this one, keep in mind they'll be picking from eight different counties," Connors said. "So they'll be able to get a fair and impartial jury. I would highly doubt this case venue is changed. I would highly doubt that this is a successful motion."
A judge will now have to decide if this case will be moved to New York City or if it will stay in downtown Buffalo.
