By Dan Herbeck
The Buffalo News
The May 14, 2022, massacre at Tops Markets on Jefferson Avenue lasted only a few minutes, but ended with 10 Black men and women dead and a community left to confront how and why something like that could happen.
On Tuesday, more than four years later, a process to determine what should be done to the man behind it will begin. In the process, history will be made.
Jury selection is set to begin in Buffalo's federal courthouse for Payton Gendron, 23, who has already pleaded guilty in state court to murdering 10 people and injuring three others.
If jurors convict Gendron on murder and hate crime charges, he could become the first person sentenced to death under federal law in the history of Western New York.
"This is the first death penalty trial in the history of the federal courts in this district, which date back 126 years," said an official of the 17-county Western District of New York.
Federal death penalty cases are rare throughout the United States, not just in Buffalo. Since 1977, 1,684 convicted killers have been executed nationwide, according to the nonprofit Death Penalty Information Center. Of those executions, only 16 – well below 1% – were federal cases, according to the center's death penalty database.
The last death penalty case with any connection to Western New York was the conviction of terrorist killer Timothy J. McVeigh, an Army veteran who grew up in Niagara County.
McVeigh was executed in 2001 after jurors convicted him of the 1995 terrorist bombing that killed 168 people in a federal office building in Oklahoma City. McVeigh was the first person executed by the federal government in 38 years.
The jury selection process that begins Tuesday before District Judge Lawrence J. Vilardo is expected to last six to eight weeks, and hundreds of potential jurors could be questioned.
A federal public defender, MaryBeth Covert, speaking on behalf of the defense team, told The Buffalo News that Gendron’s lawyers intend to offer at trial “mitigating evidence about Payton that the jury needs to consider.”
Covert said the defense team acknowledges that Gendron “caused tremendous loss and suffering ... by taking 10 lives, seriously injuring three others and traumatizing many more. Arrested for these crimes at age 18, Payton pled guilty in state court and has been sentenced to life in prison without the chance of release, plus 90 years. Nothing will change the fact that Payton Gendron will die in prison.”
Covert added that the federal government is now seeking the death penalty and a jury will decide the issue.
“Nothing we say or do” in representing Gendron “is intended to be disrespectful or insensitive to the victims, the survivors or their loved ones,” Covert added.
By questioning potential jurors, Vilardo will try to find open-minded people who would be willing to render a death penalty verdict, but also willing to turn down a death sentence for Gendron.
Local lawyers and legal experts who have been following the Gendron case said his defense team’s only hope is to save their client from execution.
Joseph J. Terranova, a retired defense lawyer who handled more than 200 homicide cases, and Patrick J. Brown, one of the region’s top defense lawyers since the late 1970s, said the makeup of the jury will be extremely important.
“People who are 100% against the death penalty, of course, will be rejected. People who are too much in support of the death will also be rejected,” Brown said. “As a defense lawyer, you are hoping to find a jury of people who are willing to consider rejecting the death penalty.”
Gendron has already admitted to the racist attack and murders in state court, and on the day of the massacre, he livestreamed his murders, Terranova noted.
“Given all that, there is no way the defense could possibly try and convince a jury he didn’t do this,” Terranova said. “Their only hope is to try in the penalty phase of the trial to save him from execution.”
Both Brown and Terranova said that if they were defending Gendron, they would consider putting him on the witness stand.
“Jurors could see what kind of a messed up young man he is and hear about all the things that influenced his actions,” Terranova said. “He could testify about the different racist websites he was looking at, and how that influenced him.”
Covert declined to comment on whether there are any plans for Gendron to testify.
As far back as December 2022, Gendron’s defense team has told The News and other media that Gendron would have pleaded guilty to federal charges if prosecutors had agreed to take the death penalty off the table. Defense lawyers also told that to Vilardo in open court in August 2024.
There will be two phases to Gendron’s federal trial: The first phase will be to determine whether he is guilty of the massacre. The second phase – if he is convicted – will be to determine his punishment, with the death penalty as one of the possibilities.
Buffalo police officers arrested the heavily armed and body-armored Gendron at Tops immediately after the massacre of Black customers and workers.
In November 2022, he pleaded guilty to all state charges filed against him, including murder and domestic terrorism motivated by hate. In February 2023, he was sentenced to consecutive life sentences in state prison, with no possibility for parole.
The U.S. Justice Department in July 2022 charged him with 27 felony crimes, including hate crimes and weapons crimes resulting in death. Prosecutors said Gendron spent months planning to kill Black people in Buffalo and drove more than three hours from his home near Binghamton to commit the crimes.
After consulting with the victims’ families and deliberating for many months, the Justice Department announced in January 2024 that it would pursue the death penalty against Gendron.
Gendron’s attorneys have argued that he should be exempt from the death penalty because he was only 18 at the time of the killings. They have cited research showing that the human brain is not fully developed until a person is in his or her 20s.
While he said he understands why family members of the victims would want Gendron to face the worst possible punishment, Terranova said, “In my opinion, this federal death trial is a colossal waste of time of money. It is going to cost taxpayers millions. ... This kid is already sentenced to spend the rest of his life in state prison, with no hope of ever being released.”
A Justice Department spokesperson declined to comment on Terranova’s remarks.
While Gendron’s trial will be the first death penalty trial in the history of Flowers and portraits at the memorial outside Tops Markets on Jefferson Avenue, local attorneys and court officials added that they cannot recall any state death penalty trial here in at least 50 years.
Long ago, death penalty trials and executions were much more common in the region.
In 1821, a witchcraft trial was held in Buffalo. A woman was put to death after she was convicted of using "sorcery" to cast a spell that killed a man. In 1825, three brothers were hanged for murder in Niagara Square. According to estimates, 25,000 people watched.
The most famous death penalty trial in the region’s history occurred after the Sept. 6, 1901, assassination of President William B. McKinley during the Pan-American Exposition. Leon Czolgosz, a self-proclaimed anarchist, was the man who shot and killed the president.
Source: Read the original Buffalo News article .