BUFFALO, N.Y. (WKBW) — For the first time in more than two years, the racist Tops mass shooter appeared in a federal courtroom in Buffalo Thursday as his death penalty case moves forward.
Payton Gendron is already serving a life sentence for killing ten Black people at the Tops on Jefferson Avenue almost three years ago.
I found out jury selection will now take place months later than expected.
Gendron is an inmate at the Livingston County Jail in Geneseo. He was brought into court wearing a tan color prison-issued uniform, not the orange we previously saw him wear during his time for his state court appearances in Erie County.
"The defendant has the right to waive his appearance in court, but not at the critical stage of proceedings," remarked Attorney John Elmore. "The defendant has to be informed because if the defendant is not there, then that's another reason for the case to be sent back and tried over again if there's a conviction. So, the court wants to make sure that this case is only tried once."
The courtroom was filled with several family members of the ten Black community members killed in the Tops massacre.
"The families that lost loved ones have been waiting a very, very long time for justice," Elmore stated.
Thursday, U.S. Judge Lawrence Vilardo outlined several pre-trial topics and denied the defense's request for a motion to delay the case for a full year, saying, "We are not adjourning for a year."
A member of Gendron's defense team, with extensive death penalty experience, told the judge they object to the trial scheduling, but the judge stated it's already been "put off for some time" and "all things must come to an end."
The judge ordering jury questionnaires will begin this October, not September, and will be reviewed in November and December by both the defense and prosecution. Potential jurors would be brought in for actual selection in January.
I spoke with attorney Elmore, who is representing some of the families of those killed.
"The victims' families that come to court, they're looking for finality. They lived the most terrible tragedy that anybody could ever live through in their life, every time they come to court. They're upset. They have to relieve a fateful day. They're looking for the case to be tried."
Elmore described the balance act the judge must conduct to make sure he offers a fair and speedy trial for the victims' families and the defendant.
"The court has to weigh the defendant's right to a speedy trial as well as the public's right to have a speedy trial," Elmore noted. "What the judge did was he didn’t adjourn the case for the full year that the defense required, but he adjourned it in the amount he felt was a reasonable time for them to prepare."
There will be Roper hearings held in early May. This will address the mental capacity of offenders who are under 18 when they commit crimes. Roper v. Simmons was a Supreme Court case. Elmore describes it as a person 17 years old cannot be held mentally responsible for committing a capital crime.
In May, both the defense and prosecution will present witnesses who will provide expert testimony about brain development.
The defense team is also seeking a change in venue motion, but it notified the judge Thursday that their request is not "complete" and plans to submit the full request by June 2. The judge said that once it is submitted, he will give the government until July 21 to respond, and then the defense rebuttal on August 11, with oral arguments to follow.
