Supermarket gunman who targeted Black people wants charges dropped, says
grand jury was too white
[August 15, 2025]
By CAROLYN THOMPSON
BUFFALO, N.Y. (AP) — 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't enough Black people and other minority groups on the grand jury
that indicted him.
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.
At the hearing's start, U.S. District Judge Lawrence Vilardo noted
Gendron's objection to the prevalence of white people on the panel
seemed “a little incongruous” in the hate crimes case. He did not
immediately rule on the motion.
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 ranged in age
from 32 to 86. Three others were wounded.
Gendron already 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. The Justice Department said it would seek the death
penalty if Gendron is found guilty.
Attorney John Elmore, who represents some of the victims’ relatives in
lawsuits, said Gendron's 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.
“It is very ironic that attention to this problem is being brought out
in this case, where Payton Gendron committed a racially motivated
homicide,” he said by phone after the hearing. “But this has been a
persistent problem in our courts that needs to be addressed.”
Gendron's lawyers argued 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.
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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)
“We don’t know what the vendor did,” Assistant Public Defender Sonya
Zoghlin said. "More importantly, the vendor doesn’t know what he
did.”
Statistically, the addition of two more Black people on the
60-person grand jury panel would have balanced the panel, Vilardo
said.
“Can't that be the result of an accident," the judge asked, rather
than systemic exclusion?
In opposing the motion, Assistant U.S. Attorney Caitlin Higgins said
that at worst, the issue constitutes a “technical violation,” not
grounds to dismiss the indictment.
The federal law governing jury selection “doesn’t entitle the
defendant to a perfect representation,” she said.
Zoghlin said the issue was larger than the panel that ultimately
heard Gendron's case and included the exclusion of certain groups
from the selection process, including inactive voters.
In a written filing, 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.
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's federal
courts.
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.
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