Jury selection opens in Buffalo Tops shooter's federal death penalty trial

More than four years after a gunman killed 10 Black people at a Tops supermarket on Buffalo's East Side, the federal government opened its own case against him on Tuesday. Jury selection started at the Robert H. Jackson U.S. Courthouse in downtown Buffalo, where Payton Gendron could face a death sentence.

A second trial after a life sentence

On May 14, 2022, Gendron, then 18, drove to the Jefferson Avenue store and opened fire on shoppers and workers. Ten people died and three were hurt. He later pleaded guilty to state charges that included domestic terrorism motivated by hate. He is already serving life in prison with no chance of parole.

The federal hate crimes case is different. Prosecutors are seeking capital punishment, so a jury will decide both whether he is guilty of the federal counts and whether he should be executed. Both decisions must be unanimous. Former Erie County District Attorney John Flynn said it is believed to be the first federal death penalty case ever tried in Buffalo.

A slow search for a fair jury

Finding 12 jurors and six alternates is expected to take a month or more. The pool reaches well beyond Erie County, covering the federal district that stretches from roughly Syracuse west to Buffalo. Lawyers on both sides will screen for people who can set aside four years of heavy coverage, weigh the evidence with an open mind and say whether they could consider a death sentence.

"It'll be difficult," Flynn said of seating an impartial panel. He still expects it to happen and noted that many residents know less about the case than people assume. Opening statements could come in early December and the full trial may run into the first months of 2027.

What jurors may see

U.S. District Judge Lawrence Vilardo has ruled that prosecutors may show graphic evidence that was not part of the state case, including video Gendron recorded during the attack. Flynn said the guilt phase is not the hardest part for prosecutors. The real test, he said, will be persuading jurors in the penalty phase. Even among the victims' relatives, some would rather see Gendron spend his life in prison than face execution.

The 10 lives at the center

Those killed were Roberta Drury, Margus Morrison, Andre Mackniel, Aaron Salter Jr., Geraldine Talley, Celestine Chaney, Heyward Patterson, Katherine Massey, Pearl Young and Ruth Whitfield. Salter, a retired Buffalo police officer working as the store's security guard, died after firing back at the gunman. Their families and the East Side neighborhood they called home will be watching the courthouse closely in the weeks ahead.