By Staff Reporter
BUFFALO — As jury selection grinds through its first week in the federal death-penalty trial of the Tops supermarket gunman, his lawyers have put a hard question in front of the judge: whether the Western District of New York’s jury pool leaves out too many Black residents. That is the community the gunman targeted.
Lawyers for Payton Gendron filed a motion Monday, Oct. 12, asking U.S. District Judge Lawrence J. Vilardo to throw out the 27-count federal indictment. Mr. Gendron killed 10 Black people and wounded three others at the Tops Friendly Markets on Jefferson Avenue on May 14, 2022.
“Payton Gendron hereby moves to dismiss the indictment on the grounds that the petit jury pool fails to reflect a fair and reasonable cross section of the community resulting in continued systemic under-representation of African Americans in the Western District of New York’s jury lists,” his attorneys wrote, according to WKBW.
Jury selection began the next morning anyway. Oral arguments on the motion are expected in the coming weeks, WIVB reported. As of Friday, The Buffalo Chronicle could find no public ruling and no public response from prosecutors.
Why a ‘last-minute’ filing
The timing has been described as last-minute, but federal law effectively requires it. Under the Jury Selection and Service Act, a defendant who wants to challenge how a jury pool was assembled must file “before the voir dire examination begins,” or within seven days of discovering the grounds, whichever comes first. Filing the day before questioning started kept the claim alive.
“It is not an uncommon motion to be filed, especially in a trial of this magnitude,” Joel Violanti, a former U.S. attorney for the Western District, told WIVB.
Such challenges are hard to win. Under the Supreme Court’s 1979 decision in Duren v. Missouri, a defendant must show three things: that the excluded group is a distinct part of the community, that its share of jury pools is not fair and reasonable compared with its share of the population, and that the gap comes from “systematic exclusion” in how jurors are picked. The same federal law requires courts to draw names from voter registration lists and to add other sources when needed to get a fair cross section. And if a judge does find a substantial violation in how a trial jury pool was drawn, the statute’s remedy is to pause the case until a properly drawn jury can be picked, not necessarily to end the prosecution.
An argument the defense has made before
The motion builds on a theme from the defense’s failed 2025 bid to move the trial out of Buffalo. In that motion, the attorneys wrote, “It is likely that a large percentage of potential Black jurors will be excludable for cause.” They pointed to segregation in East Buffalo, the number of victims, and the store’s role as both a grocery and a community gathering place. Judge Vilardo denied the request to move the trial.
The new motion raises a related concern. If the district’s jury lists already undercount Black residents, the defense argues, the problem gets worse when Black jurors with close ties to the attack are excused.
What the first week looked like
About 3,000 preliminary questionnaires went out earlier this year. In June, about 1,200 prospective jurors moved on to a longer questionnaire, Buffalo Toronto Public Media reported. Those people are now being questioned one at a time at the Robert H. Jackson U.S. Courthouse. The 12 people questioned on the first day were all white, BTPM reported.
“There are no right or wrong answers to any of the questions posed to you today,” Judge Vilardo told the group, according to BTPM. He also cautioned prospective jurors that the trial “is not a referendum on race,” ABC News reported.
Much of the questioning has focused on the death penalty and on what jurors have already seen. Told that the video Mr. Gendron livestreamed during the attack could be shown at trial, one prospective juror said, “I mentally cannot handle that.” A public school teacher said, “I get physically ill thinking about ‘white supremacists,’” WBEN and the Associated Press reported.
Defense attorneys have told prospective jurors they expect their client to be convicted. Mr. Gendron pleaded guilty to state murder and terrorism charges in 2022 and is serving life without parole. The federal case is about whether he will be executed. If he is convicted of a death-eligible count, the same jury must decide unanimously between life in prison and death.
“Jury selection process will take several weeks,” Judge Vilardo said. The court plans to seat 12 jurors and six alternates by late November. Testimony is expected to begin in December and run into February 2027.
Who decides, and what could fix it
The motion puts the district court’s own jury system on trial, alongside the defendant. Judge Vilardo will decide whether the defense has made the showing Duren requires. That could mean ordering the clerk’s office to produce data on the race of people summoned and seated. The court has already reserved 10 courtroom seats for victims’ families, citing their right under the Crime Victims’ Rights Act not to be excluded from public proceedings.
Whatever the outcome, the questions the motion raises reach beyond this case. How many questionnaires sent to East Buffalo addresses go unanswered or come back undeliverable? Does the district add other lists to its voter rolls? Have the court’s periodic reviews of its jury wheel found gaps? The answers would show whether Western New York’s federal juries reflect the region, for this trial and every one that follows.
The Buffalo Chronicle has asked the U.S. Attorney’s Office and the Federal Public Defender’s Office for comment and for copies of the filings. Any responses will be added to this story.
Featured photo: The Robert H. Jackson U.S. Courthouse in Buffalo. Photo by the U.S. General Services Administration via Wikimedia Commons, public domain.
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