Tops shooting suspect’s lawyers get more time to consider psychiatric defense, but denied request
A judge has denied a request by attorneys for the alleged Tops Market gunman to delay the case for one year, but has granted them more time to decide about pursuing a psychiatric defense.
Erie County Court Judge Susan Eagan made the rulings Thursday during an appearance by Payton Gendron and his court-appointed defense attorneys.
Gendron, who recently turned 19, faces state charges, including first-degree domestic terrorism motivated by hate, for the May 14 shooting at Tops on Jefferson Avenue in Buffalo that left 10 Black people dead.
Under state law, his attorneys were supposed to have filed whether they intend to pursue a psychiatric defense by last weekend, but they instead asked for a six-month extension. They had just received prosecutors’ discovery against Gendron on Thursday, including a large amount of physical evidence from the scene and a hard drive with a terabyte of data.
“All of that needs to be reviewed,” said one of Gendron’s attorneys, Brian Parker, in court. “These are extraordinary circumstances surrounding this case.”
Parker stressed several times that they had not yet made a decision about whether they’ll argue Gendron is not criminally responsible for the shooting due to mental disease. They’ll need to review the prosecution's evidence and conduct their own investigation before they decide, Parker said.
Eagan instead gave a 90-day extension until Oct. 6. That will also be Gendron’s next county court appearance.
Gendron’s attorneys had also made an even bolder request: a stay order that would delay the state case for one year. They argued the state case moving forward at this time could hurt Gendron’s ability to defend himself against the death penalty in the federal case against him.
Gendron was charged with numerous federal hate crime charges June 16, including 10 counts of hate crime resulting in death.
Robert Cutting, Gendron’s other attorney, said the state case might reveal evidence that could hinder Gendron’s federal public defenders from dissuading the Justice Department from pursuing the death penalty. For example, a psychiatric defense in the state case could subject Gendron to having to speak with the prosecution experts.
“Virtually anything we’d routinely do for our client potentially imperils [federal public defenders’] ability to make their strongest case against the death penalty,” Cutting said.
Although the federal case and state case are separate, Cutting said he and Parker had an obligation to consider Gendron’s jeopardy in the federal case.
“We are trying to look at the bigger picture because at the end of the day we don’t want our client killed,” he said. “What could be more pressing, in protecting the interests of our client, than doing everything in our power to see to it at the end of the day that our government doesn’t kill him?”
The defense attorneys expect Gendron to be federally indicted within the week, and the Justice Department to take a full year post-indictment to decide about capital punishment. Therefore, they argued, the state case should not proceed until then.
However, Erie County Assistant District Attorney John Feroleto called a one-year stay an “extraordinary remedy” that the court shouldn’t even consider.
“I really believe this is a moot point,” he said.
Eagan ultimately sided with prosecutors.
“This court is not inclined to grant a one-year stay,” Eagan said.
It's still unclear whether the Justice Department will pursue the death penalty against Gendron.
U.S. Attorney General Merrick Garland has stated publicly that he opposes the death penalty. When asked about the death penalty while visiting Buffalo last month, Garland would only say that the case is still in its early stages and that the victims' families would be consulted.
Prosecutors have said Gendron drove over 200 miles from his parents’ home in Broome County to commit the shooting, which he livestreamed on Twitch.
Gendron, a self-professed white supremacist, allegedly chose the Buffalo Tops store because it’s located in a predominantly Black ZIP code, and he wanted to kill as many Black people as possible.
According to online writings posted on a Discord server, Gendron prepared for the attack for months, buying firearms and body armor, and even visiting the store several times to draw a map of the inside and count the number of Black people there.
Gendron appeared in court Thursday shackled, wearing an orange jail uniform and white face mask.
He spoke only once during the half-hour hearing. When asked by Eagan whether he understood that by law he could not physically possess the discovery against him, he replied, “Yes.”
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