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Gendron Attorney: Guilty plea possible if federal death penalty off table

Payton Gendron (seen in orange) being is led out of the courtroom after a hearing at Erie County Court, in Buffalo, N.Y., on May 19, 2022. Gendron faces charges in the May 14, fatal shooting at a supermarket. Gendron is expected to plead guilty on Monday to state charges against him.
Matt Rourke
Payton Gendron (seen in orange) being is led out of the courtroom after a hearing at Erie County Court, in Buffalo, N.Y., on May 19, 2022. Gendron faces charges in the May 14, fatal shooting at a supermarket. Gendron is expected to plead guilty on Monday to state charges against him.

Tops shooter Payton Gendron’s defense attorney says he is prepared to enter a guilty plea on federal charges, similar to what he did in New York State, but only if their talks on "mitigation" -taking death penalty off the table- prevail.

In federal court for a status hearing Friday, defense attorney Sonia Zoglin said " it is still our hope to avoid a trial” and that Gendron was "prepared to enter a similar plea “ to the federal charges if talks over not having him face a death sentence bear fruit.

Gendron, a 19-year-old racist white gunman admitted targeting and killing 10 Black people and injuring three others at the Tops Market on Jefferson Avenuelast May pleaded guilty on November 28 to state charges against him.

Gendron pleaded guilty on the state level to one count of domestic terrorism in the first degree, 10 counts of first-degree murder, 10 counts of second-degree murder as a hate crime, three counts of
attempted second-degree murder as a hate crime and one count of second-degree criminal possession of a weapon.

He pleaded guilty to 15 state counts, including the 10 counts of first-degree murder, which automatically dismissed the remaining 10 second-degree charges.

"Why do we need to spend a lot of time on substantive questions of guilt?,' asked federal magistrate Judge H. Kenneth Schroeder during Friday's proceedings on his federal prosecution. Before ultimately agreeing to it, Schroeder questioned the need for extra time to examine evidence in that trial.

At the federal level, Gendron is facing additional charges, including 10 counts of hate crimes resulting in death and three counts of hate crimes involving an attempt to kill, along with 13 counts of using, carrying or discharging a firearm.

If convicted on all 27 federal charges, Gendron could face either the death penalty or a second sentence of life in prison without parole. The attorney general will decide at a later date on whether to seek the death penalty, according to the Justice Department.

Zoglin sought a 90 day delay to go through the " Mulitple terrabytes” of evidence that the prosecution has provided in the federal case, - including videos of the shootings.

But ultimately—before he said yes to that – federal magistrate Judge H. Kenneth Schroeder asked several questions about last month’s guilty plea to multiple state murder , hate crime and domestic terror charges.

Zoglin says they are hoping to pursue a mitigation defense, which seeks to find reasons why the death penalty should not be imposed.

Attorneys for some of the victim families tell WBFO that already mitigation specialists" have sought to speak with family members to help develop an argument that would take the death penalty off the table.

Assistant US Attorney Joseph Tripi said that early meetings on that are scheduled in Buffalo, lo sometime after the holidays before going up the chain to Washington for an ultimate decision. If prosecutors in Buffalo ask for permission to conduct a death penalty prosecution, a panel at the US Justice Department will review the case, before sending a recommendation to US Attorney General Merrick Garland.

Sentencing on the NYS charges has been scheduled for Feb. 15, but Erie County District Attorney John Flynn says Erie County Judge Susan Egan will be required to sentence Gendron to life without
parole, New York's highest sentence, for pleading guilty to the first-degree domestic terrorism charge.

In the meantime, Gendron's federal public defenders get 90 days to go over the evidence, with Judge Schroeder saying that by then there should be clarity on the death penalty possibilities.

The extra time will also help resolve a possible conflict between state and federal law over sentencing and custody. Several times during Friday's hearing Schroeder asked about rules of custody, that would essentially put Gendron off limits after a state sentence— especially if the federal trial by then is only chasing the same life in prison sentence that had been imposed by the state.

Family members speak out

Following the news of the plea, family members of the shooting victims spoke to reporters about what happened during the court hearing —expressing their feelings towards the gunman and the possible guilty plea.

" This man was selfish. And broke God's commandment of Thou shalt not kill. He did it. And I pray that God holds him accountable for what he did. And I know he will....
Did he show mercy? When are those other nine victims asked to be spared? What about when he chose to shoot other people? I'm sure they didn't get up in the morning and say, I want to be shot today. So when he made choices, he also made consequences for himself"
- Kimberly Salter, widow of Aaron Salter Jr., killed by Gendron

"I want a trial. I want everybody in America to see what happened here on that day. And I want it to happen, because it goes down into the history books. And as we know, our history books do not reflect the actual racist country that we live in,"
- Zeneta Everhart, who's son Zaire Goodman was injured when he was shot by Gendon.

I can tell you, from what I've heard today, none of the families are advocating for life. They're hurt. Some of the families obviously made it very vocal and clear that they want the death penalty. Others were just silent. And they said, well, it's going to be up to the authorities to do what they do. But I'm not going to just jump up and say, I want to save his life,"
-Attorney John Elmore, representing that families of Kat Massey and Andre Mackniel, killed by Gendron

" I understand his impending rights. And I can't advocate for trampling on his rights, because it's our rights as a people that have been trampled on down through history. So I cannot advocate for that. I understand the process. I understand. But I think there's some gamesmanship underway, in terms of him pleading guilty.,"
- Garnell Whtifield Jr., who's mother Ruth Whitfield was killed by Gendron


Related Content
  • The 19-year-old will be sentenced to life without parole for the state charges. He faces an additional 27 charges at the federal level, one of which carries a possible death sentence.
  • Today, one day after the Tops shooter pleaded guilty to murder and domestic terror charges, we have the entire hour with Attorney John Elmore, who represents the families of shooting victims Andre Mackneil and Kat Massey. A former prosecutor and state trooper, Elmore has worked on civil rights issues in Buffalo for years and is the author of “Fighting for Your Life: The African American Criminal Justice Survival Guide.”