The latest flurry from lawyers for Payton Gendron argues the gunman’s constitutional right to a diverse pool of grand jurors was violated -- saying the 60 potential grand jurors didn’t include enough Hispanic or Black people. Former Erie County District Attorney John Flynn, who convicted Gendron on state charges for the targeted murder of 10 Black people, said jury diversity is a real issue, but the judge has a wide scope.
“Judges look at the totality of the circumstances. If you're looking at the totality of the circumstances here, you're going to say to yourself, well, we got a white guy here, not an African American, who killed 10 African Americans," Flynn said.
Flynn said in a death penalty case, defense lawyers tend to file a flurry of motions. This one, based on the grand jury pool, is just one of several they’ve made.
“A defense lawyer in this situation right here, where they have basically said and told the court that they are willing to plead guilty if you take the death penalty off the table," Flynn said. "The federal government has not done that. So, the defense attorneys now are faced with a situation where they pretty much have to throw everything against a wall and see what sticks."
Attorney John Elmore represents several of the May 14 families, while he also sees the move as an expected one in a death penalty case, he’s still jarred at the circumstance.
“It's ironic that the lawyers for a person who's admitted to committing a racially motivated shooting of African Americans based upon white supremacist ideology would file a motion to say that the grand jury was not fair because it didn't have African Americans or Hispanics on it, but I can tell you this, that’s the lawyer's job in a death penalty case," Elmore said.
For Elmore, it also highlights something he has seen in state and federal cases he’s been part of.
“What it does is it brings attention to the fact that there is a persistent problem in Erie County in Buffalo, New York, whether it's a state jury or a federal jury or a grand jury, of the lack of diversity. I've been trying cases in this county since 1987 and more times than not, there are not any African Americans or minorities in the jury," Elmore said.
With all the delays from both the U.S. Attorney’s Office and the defense, Elmore said families just want to see a resolution to legal proceedings.
“All of the families that lost loved ones due to this mass shooting are looking for some finality," Elmore said. "They want this case to go to trial. They want to see an end to it.”
Judge Lawrence Vilardo has not ruled on the motion yet, but called the filing “a little incongruous” during a hearing. Gendron’s federal trial is expected to start next summer.
