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Is there a death penalty case in the future for 5/14?

5/14 suspect Payton Gendron is led into the courtroom for a hearing at Erie County Court, in Buffalo, NY on May 19.
Matt Rourke
5/14 suspect Payton Gendron is led into the courtroom for a hearing at Erie County Court, in Buffalo, NY on May 19.

New York State doesn’t have a death penalty, but within hours of 10 people being killed at the Jefferson Avenue Tops supermarket May 14, state Attorney General Letitia James said there would eventually be a federal case and that would allow a death penalty.

The arrested suspect has been indicted in state courts on more than two dozen counts, including terrorism, which carries a sentence of life without parole, but there hasn’t been any comment from U.S. Attorney Trini Ross, as the FBI continues investigating the shooting.

Terry Flynn can understand the complexity of the federal death penalty because he was U.S. attorney under President George W. Bush.

“It's a very involved process," Flynn said. "It's involved both procedurally in the courts. It's involved, obviously, for the court itself and the trials and then, obviously, there's the appeal process and so forth. There's issues the Bureau of Prisons will deal with later. So it's long and understandably so. We're dealing with someone's life. So, under federal law and DOJ protocols, there's many safety valves built into that system, every step of the way."

Flynn said people sometimes don’t understand why the federal process is so long and tangled and takes so much time.

“You have to make sure that everyone's rights are protected under the Constitution. So, I know it's hard for people sometimes to fathom it, but at the end of the day, as time passes, they realize everyone wants it done right and they want to make sure it's done properly and that it can withstand any type of appeal,” Flynn said.

He said the process toward a death penalty case begins in the local prosecutor’s office, like the two potential cases when he was the chief prosecutor.

“Evaluate the underlying investigation to determine whether facts exist, specifically evidence that meets the various requirements," he said. "The federal death penalty statute only applies on certain crimes and the federal law enumerates what they are. And, then, for each of those respective type of crimes, there's what we call predicates and there's specific elements that must be met.”

Under federal rules, defense lawyers who are certified to work on death penalty cases, called “death qualified,” are brought in to talk to local prosecutors before the office decides the case meets the rules for a death penalty case. It also goes to the deputy attorney general in Washington, with the ultimate decision made by the attorney general to go for the execution option.

There are 44 people on federal Death Row awaiting execution and there are federal executions, usually at a federal prison in Terre Haute, IN, where Oklahoma City bomber Timothy McVeigh of Pendleton is incarcerated. During the election campaign, President Joe Biden said he wouldn’t allow any federal executions.

Mike Desmond is one of Western New York’s most experienced reporters, having spent nearly a half-century covering the region for newspapers, television stations and public radio. He has been with WBFO and its predecessor, WNED-AM, since 1988. As a reporter for WBFO, he has covered literally thousands of stories involving education, science, business, the environment and many other issues. Mike has been a long-time theater reviewer for a variety of publications and was formerly a part-time reporter for The New York Times.