By Ray Dombrowski
BUFFALO — Jury selection in the federal death penalty trial of Payton Gendron, who killed 10 Black people at the Tops supermarket on Jefferson Avenue in May 2022, entered its fifth week Monday. One prospective juror was sent home after telling the court she could never vote to sentence him to death, WGRZ reported.
The woman told the judge and lawyers that a recent execution in Tennessee, which WGRZ described as botched, had changed her view. “I was taken aback by that,” she said. “I was conflicted before, but after that botched execution … (the death penalty) almost seems barbaric.”
She said the strength of the evidence would not change her answer. “Even though there would be proof of what this person has done, and that it was premeditated … and that it was a heinous crime and the community is still suffering … I don’t think I could condemn someone to death,” she said. Asked directly whether she could vote for a death sentence, she answered, “I could not.”
Prosecutors moved to dismiss her. Under the law, a juror who says without qualification that they would never vote for death must be excused from a capital case, WGRZ reported.
Where selection stands
Fifty prospective jurors have qualified so far toward a pool of 70, from which the final jury of 12 and its alternates will be chosen, according to the victims’ families’ lawyer, John Elmore, who discussed the process on WBEN’s “Buffalo All Local” podcast, the Spanish news agency EFE reported Monday. The court is questioning eight to 10 people a day, Monday through Thursday, he said, and selection could take two to three more weeks. The judge has set Dec. 7 for the trial to begin.
Mr. Elmore said only one Black prospective juror has been identified among the 50 so far, which he attributed to the pool being drawn from eight Western New York counties, EFE reported.
About 1,200 people filled out juror questionnaires over the summer, and that group was narrowed to roughly 700 before questioning began Oct. 13, 13WHAM reported. U.S. District Judge Lawrence J. Vilardo told prospective jurors then that the trial will have a guilt phase and, if Mr. Gendron is convicted, a separate penalty phase.
What each side is looking for
The defense wants jurors who will weigh mitigating evidence and consider life in prison, WGRZ reported. Prosecutors want jurors who will not only consider the death penalty but say they could sign a verdict form imposing it.
Mr. Gendron faces 27 federal counts, including hate crimes and firearms charges. He has pleaded not guilty to the federal charges. He pleaded guilty to state charges, including domestic terrorism motivated by hate, and has been serving life in prison without parole since February 2023. He offered to plead guilty to the federal charges in exchange for life without parole, and the Justice Department declined, EFE reported.
New York has no state death penalty, but federal prosecutors can seek it for federal crimes in any state. New York has not carried out a state execution since 1963, and there has not been a federal execution in the state since 1954, according to the Federal Bureau of Prisons, 13WHAM reported.
Voices outside the courtroom
Paul McQuillen, executive director of the Western New York Coalition Against the Death Penalty, spoke outside the courthouse when selection began. “This takes nothing away from the heinousness of the crime,” he told 13WHAM. “I know many of the people who were impacted by the killing, and my heart still goes out to them, and I love them. But we can’t let something like this deter from our ultimate goal, which is to end the death penalty and stop it here in Buffalo, New York.”
The 10 who were killed
Roberta A. Drury, Margus D. Morrison, Andre Mackniel, Aaron Salter Jr., Geraldine Talley, Celestine Chaney, Heyward Patterson, Katherine Massey, Pearl Young and Ruth Whitfield were killed on May 14, 2022. Three other people were wounded.
What comes next
Prospective jurors who have qualified were told they would be contacted in late November or early December if they need to return, 13WHAM reported. Once the pool of 70 is complete, the lawyers will use their strikes to reach the final jury before the Dec. 7 start date.
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