Supermarket gunman who targeted Black people wants charges dropped, says grand jury was too white

Police secure an area around a supermarket where several people were killed in a shooting, May 14, 2022 in Buffalo, N.Y. Relatives of victims of a racist mass shooting at a Buffalo supermarket have been called to federal court Friday, Jan. 12, 2024 for a "substantial update" in the legal case against Payton Gendron, their attorney said. (Derek Gee/The Buffalo News via AP, File)

BUFFALO, N.Y. — Attorneys for the gunman who killed 10 Black people at a Buffalo supermarket say the federal charges against him should be dropped because there weren’t enough Black people and other minority groups on the grand jury that indicted him.

A judge is scheduled to hear arguments Thursday on Payton Gendron’s claim that the selection process for the grand jury was flawed.

Gendron, who is white, 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 ranged in age from 32 to 86. Three others were wounded.

He is serving a sentence of life in prison without the possibility of parole after pleading guilty in November 2022 to multiple state charges, including murder.

A trial on the pending federal hate crime and weapons counts is expected to begin next year.

Gendron’s lawyers argue in a court filing that Black and Hispanic people and men are “systemically and significantly underrepresented” in the lists from which jurors are selected in the Buffalo area.

“To 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,” Gendron’s lawyers wrote. Exacerbating the problem, they said, was that the data sources used by a vendor to pull the lists together weren’t preserved.

As a result, Gendron’s legal rights to a grand jury drawn from a fair cross section of the community were violated, they said, so the charges should be dismissed.

Prosecutors said the arguments “fail both as a matter of law and fact.”

In a written response, the U.S. Attorney’s office said Gendron didn’t prove a systematic underrepresentation that was caused by the district’s 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.

“The defendant is charged with killing 10 Black people and injuring three other individuals as part of a racially motivated attack on a grocery store,” prosecutors wrote. “He now demands that the court dismiss the indictment against him because, in his view, the implementation of the Western District of New York jury plan led to the underrepresentation of certain minority groups — including Black persons.”

U.S. District Judge Lawrence Vilardo is scheduled to hear oral arguments on the defense’s motion Thursday afternoon.

Gendron’s attorneys, in an earlier filing, argued that Gendron should be exempt 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.

Carolyn Thompson, The Associated Press