Potential jurors in Buffalo mass shooter's federal trial face death penalty questions

Potential jurors in the federal trial of Payton Gendron, who is already serving a life sentence in state prison for killing 10 Black people in a 2022 racially motivated attack at a Buffalo, New York, supermarket, are being questioned by attorneys on Tuesday about their opinions on the death penalty.

Gendron, 23, is charged in a 27-count federal indictment that includes 10 counts of hate crimes resulting in death.

He has pleaded not guilty to the charges after the Department of Justice rejected his proposal to plead guilty in exchange for them not seeking the death penalty.

The decision to pursue the death penalty was made by the Department of Justice in January 2024 under the Biden administration while Merrick Garland was serving as the U.S. attorney general.

"We acknowledge that our client, Payton Gendron, caused tremendous loss and suffering at the Tops grocery store by taking ten lives, seriously injuring three others, and traumatizing many more," Gendron's attorneys said in a statement to ABC News.

The attorneys noted that Gendron was just 18 years old when he was arrested in the immediate aftermath of the May 14, 2022, massacre at a Tops supermarket on Buffalo's east side, which he livestreamed on the internet.

Before the attack, Gendron also posted a racist screed online containing the names of past mass shooters he admired.

Gendron pleaded guilty to state charges, including 10 counts of murder, 3 counts of attempted murder, and domestic terrorism motivated by hate, in February 2023. He was sentenced to life in prison without the possibility of parole, plus 90 years, by an Erie County Court judge who said he deserved "no mercy."

During his state sentencing hearing, Gendron made a statement in court, saying, "I did a terrible thing that day. I shot and killed people because they were Black. Looking back now, I can’t believe I actually did it. I believed what I read online and acted out of hate. I know I can’t take it back, but I wish I could, and I don’t want anyone to be inspired by me and what I did."

In their statement this week, Gendron's attorneys said, "Nothing will change the fact that Payton Gendron will die in prison."

"At trial, we will offer mitigating evidence about Payton that the jury needs to consider in making its decision. Nothing we say or do is intended to be disrespectful or insensitive to the victims, the survivors, or their loved ones," the defense attorneys said.

Gendron's lawyers did not elaborate on what their mitigating evidence will be.

On Tuesday morning, Gendron appeared in U.S. District Court in Buffalo wearing a blue polo shirt buttoned at the neck and black-framed glasses, according to ABC Buffalo station WKBW. Flanked by his attorneys, Gendron stood as potential jurors entered the courtroom.

Gendron sat unshackled at the defense table as Judge Lawrence J. Vilardo addressed the pool of would-be jurors.

"Jury selection process will take several weeks," Vilardo said in court.

The judge said 12 jurors and six alternates will be selected to hear the case.

The difficulty of selecting a jury was immediately evident as candidates began being questioned on Tuesday.

One potential juror told the court she took issue with having to sit through graphic evidence expected to be presented at the trial, including the livestream video Gendron took of the massacre.

"I mentally cannot handle that," the woman said.

While being questioned about his views on the death penalty, another jury candidate answered, "I believe it should exist in the law books, but should be on a case-by-case basis. If you're prepared to take a life, the penalty for that may be losing yours."

If the jury finds Gendron guilty of the charges, the trial will proceed to the death penalty phase.

The evidence portion of the trial is tentatively scheduled to begin in December, and Vilardo said jurors should expect to be available for the court proceeding through the end of February 2027.

 Vilardo instructed the potential jurors not to speak with each other or anyone else about the case.

 He cautioned the jury candidates that they will be asked about the death penalty.

"The defendant is charged...with ten counts of committing a hate crime resulting in death, ten counts of using a firearm to commit murder. These counts carry the potential sentence of death, considered a capital offense...," Vilardo said.

The victims killed in the attack ranged in age from 32 to 86. Vilardo read their names in court: Celestine Chaney, Geraldine Talley, Katherine Massey, Pearl Young, Andre Mackniel, Heyward Patterson, Ruth Whitfield, Roberta Drury, Margus Morrison, and Aaron Salter.

Salter, a retired Buffalo police officer, was working security at the store and was killed while confronting Gendron as he stormed the supermarket wearing tactical gear and wielding an AR-15-style rifle.

Vilardo notified the potential jury that Gendron had already pleaded guilty to state charges and was sentenced to life in prison without parole.

If Gendron is convicted of at least one of the capital murder charges, the jury will have to reach a unanimous decision to impose the death penalty.

"If one or more jurors find life in prison is an appropriate sentence, I will be required to impose life in prison," Vilardo said. 

The judge told the jury candidates that the trial "is not a referendum on race."

In June, about 1,200 potential jurors who filled out an initial questionnaire were summoned to appear in court to complete a more extensive inquiry to determine whether they can serve as fair and impartial jurors.