BUFFALO, N.Y. \u2014 Attorneys for the white supremacist gunman who killed 10 Black people at a Buffalo supermarket told a judge Thursday that the federal charges against him should be dropped because there weren\u2019t enough Black people and other minority groups on the grand jury that indicted him.<\/p>\n\n\n\n
Payton Gendron did not attend the hearing, during which his lawyers argued that his constitutional rights to a grand jury drawn from a cross section of the community were violated.<\/p>\n\n\n\n
At the hearing\u2019s start, U.S. District Judge Lawrence Vilardo noted Gendron\u2019s objection to the prevalence of white people on the panel seemed \u201ca little incongruous\u201d in the hate crimes case. He did not immediately rule on the motion.<\/p>\n\n\n\n
Gendron could face the death penalty if convicted in the 2022 mass shooting at a Tops supermarket, which he targeted because of its location in a primarily Black neighborhood. Those killed<\/a> ranged in age from 32 to 86. Three others were wounded.<\/p>\n\n\n\n Gendron already is serving a sentence of life in prison<\/a> without the possibility of parole after pleading guilty in November 2022<\/a> to multiple state charges, including murder.<\/p>\n\n\n\n A trial on the pending federal hate crime and weapons counts is expected to begin next year. The Justice Department said it would seek the death penalty if Gendron is found guilty.<\/p>\n\n\n\n Attorney John Elmore, who represents some of the victims\u2019 relatives in lawsuits, said Gendron\u2019s lawyers are doing what they can to keep him alive. He said challenges to the makeup of juries rarely succeed, even though he regularly sees juries lacking minorities.<\/p>\n\n\n\n \u201cIt is very ironic that attention to this problem is being brought out in this case, where Payton Gendron committed a racially motivated homicide,\u201d he said by phone after the hearing. \u201cBut this has been a persistent problem in our courts that needs to be addressed.\u201d<\/p>\n\n\n\n Gendron\u2019s lawyers argued in a court filing that Black and Hispanic people and men are \u201csystemically and significantly underrepresented\u201d in the lists from which jurors are selected in the Buffalo area.<\/p>\n\n\n\n \u201cTo illustrate this point, the grand jury that indicted Payton Gendron was drawn from a pool from which approximately one third of the Black persons expected and one third of the Hispanic\/Latino persons expected,\u201d Gendron\u2019s lawyers wrote. Exacerbating the problem, they said, was that the data sources used by a vendor to pull the lists together weren\u2019t preserved.<\/p>\n\n\n\n \u201cWe don\u2019t know what the vendor did,\u201d Assistant Public Defender Sonya Zoghlin said. \u201cMore importantly, the vendor doesn\u2019t know what he did.\u201d<\/p>\n\n\n\n Statistically, the addition of two more Black people on the 60-person grand jury panel would have balanced the panel, Vilardo said.<\/p>\n\n\n\n \u201cCan\u2019t that be the result of an accident,\u201d the judge asked, rather than systemic exclusion?<\/p>\n\n\n\n In opposing the motion, Assistant U.S. Attorney Caitlin Higgins said that at worst, the issue constitutes a \u201ctechnical violation,\u201d not grounds to dismiss the indictment.<\/p>\n\n\n\n The federal law governing jury selection \u201cdoesn\u2019t entitle the defendant to a perfect representation,\u201d she said.<\/p>\n\n\n\n Zoghlin said the issue was larger than the panel that ultimately heard Gendron\u2019s case and included the exclusion of certain groups from the selection process, including inactive voters.<\/p>\n\n\n\n In a written filing, the U.S. Attorney\u2019s office said Gendron didn\u2019t prove a systematic underrepresentation that was caused by the district\u2019s jury plan. Any disparities in the racial makeup were within accepted guidance, they wrote, and not caused by the selection process, which draws from voter, driver, tax, disability and unemployment rolls.<\/p>\n\n\n\n Higgins said courts have routinely rejected similar challenges: Vilardo said he was unaware that any such motions had been granted in cases with similar disparities in New York state\u2019s federal courts.<\/p>\n\n\n\n Gendron\u2019s attorneys, in an earlier filing, argued that Gendron should be exempt<\/a> 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.<\/p>\n\n\n\n