Federal prosecutors to seek death penalty against Buffalo, New York, supermarket gunman, a first for Biden administration

By Hannah Rabinowitz, Artemis Moshtaghian and Ray Sanchez, CNN

(CNN) — Federal prosecutors will seek the death penalty against the White gunman in a racist mass shooting at a Buffalo, New York, supermarket in 2022, according to a court document – the first time the Justice Department under President Joe Biden has authorized pursuit of the death penalty.

Payton Gendron, 20, is facing several hate crimes and firearms charges in the shooting at the supermarket where he killed 10 Black people. He already is serving a life sentence after pleading guilty last year to New York state terrorism and murder charges. His lawyers had said in court Gendron would be willing to plead guilty to the federal counts if prosecutors agreed not to pursue the death penalty.

Relatives of victims and those injured in the shooting gathered at a Buffalo courthouse Friday morning, where they received the news directly from Justice Department officials ahead of a regularly scheduled status hearing in the afternoon.

“I definitely understand that makes some people happy,” Mark Talley, son of shooting victim Geraldine Talley, said after the meeting with prosecutors. “I’m more of a dark person. If, God willing, I live to 80, he lives to 80, I would have preferred to see him tortured for the rest of his life in prison.”

Mark Talley added, “I’m not necessarily disappointed at the decision … It would have satisfied me more knowing he would have spent the rest of his life in prison being surrounded by the population of people who he tried to kill.”

Simone Crawley, the granddaughter of victim Ruth E. Whitfield, told CNN she has mixed feelings about Gendron the death penalty.

Crawley, who lives in Columbus, Ohio, and didn’t attend the family briefing, said Friday the decision still doesn’t bring her closure.

“It’s something where there is never really an outcome that will measure up to the impact that has happened,” Crawley said.

“It’s difficult because you feel like it’s the highest level of justice but at the same time some people might feel like it’s not as harsh of a reality as having to spend the rest of your life behind bars.”

Pamela Pritchett, whose mother Pearl Young was killed in the shooting, told CNN Friday: “I’d rather have a scar than an open wound. I know with them pursuing the death penalty, that means it’s probably going to be appeal after appeal. And with every appeal, the wound is there.”

Michelle Fryson – niece of Pearl Young and cousin of Margus Morrison, both victims – called the decision “a gut-punch.”

“I was hoping that he would take some time to process things for a very long time,” she said of the gunman.

‘A measure of closure’ for victims’ families

The status hearing Friday afternoon was brief and Gendron was not present as a federal prosecutor announced the decision.

Gendron’s attorneys, Sonya Zoghlin and MaryBeth Covert, said after the hearing they were “deeply disappointed” by the decision to seek the death penalty. They noted their client was 18 when the crime was committed and is already serving a sentence of life without parole.

“Rather than a prolonged and traumatic capital prosecution, the efforts of the federal government would be better spent on combatting the forces that facilitated this terrible crime, including easy access to deadly weapons and the failure of social media companies to moderate the hateful rhetoric and images that circulate online,” the statement said.

Behind the prosecution table on Friday, victims’ families watched the judge intently. Kristen Clarke, the Justice Department’s top civil rights prosecutor, sat with them. Before the hearing, Clarke greeted several with hugs and gentle pats on the back.

Gendron’s next court date is February 2. 

In the notice of intent to seek the death penalty, US Attorney for the Western District of New York Trini Ross wrote Gendron “expressed bias, hatred, and contempt toward Black persons and his animus toward Black persons played a role in the killings.”

Gendron selected the supermarket “in order to maximize the number of Black victims,” Ross wrote.

Buffalo Mayor Byron Brown said the massacre “was evil and the death penalty in my estimation certainly should apply.”

Civil rights attorney Benjamin Crump, who represents several victims and their families, in a statement said the decision “provides a pathway to both relief and a measure of closure” for his clients.

“They have been pleading for full justice for nearly two years, and today they are one step closer,” Crump said.

In New York, the death penalty is unconstitutional; however, it remains a potential sentencing option in federal cases.

During his run for president, Biden’s criminal justice platform included a pledge, laid out on his campaign website, to “work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example,” CNN previously reported. Those convicted of the most egregious federal crimes “should instead serve life sentences without probation or parole,” it said.

The position of Biden, a Democrat, was starkly different from the Republican Trump administration, which carried out 13 federal executions in the six months before Biden took office – the first federal executions in nearly two decades.

Judge and jury ultimately decide penalty

Advocates of abolishing the death penalty say Biden’s Justice Department has a mixed record on capital punishment.

In 2021, Attorney General Merrick Garland issued a moratorium on federal executions, which is still in place. Garland has deauthorized 26 death penalty cases involving 32 defendants started under previous administrations, according to department statistics, and the Justice Department had not authorized any new capital cases since he took over in 2021.

Federal prosecutors under Garland have, however, taken two death penalty cases authorized before 2021 to trial. Garland’s decision in this case merely authorizes prosecutors to seek the death penalty. Ultimately, the decision is up to the jury and a judge.

It isn’t uncommon for democratic administrations to pursue the death penalty. Under former President Barack Obama, Attorney General Eric Holder authorized the department to seek the death penalty in 39 cases, and his successor, Loretta Lynch, authorized five capital cases.

Shooter apologized at state sentencing

Gendron on May 14, 2022 killed 10 people at a Tops Friendly Markets grocery store in a predominantly Black neighborhood.

The victims included customers, employees and an armed security guard, ranging in age from 20 to 86. Of the 13 people shot, including 11 Black and two White, all of the victims who died were Black, according to authorities.

Gendron pleaded guilty in a state court in November 2022 to one count of domestic act of terrorism motivated by hate, 10 counts of first-degree murder, three counts of attempted murder and a weapons possession charge.

Gendron was sentenced to life in prison at the state sentencing hearing in New York last February, CNN previously reported.

At the time, he apologized to the victims’ families, saying he was “very sorry for all the pain I forced the victims and their families to suffer through.”

“I’m very sorry for stealing the lives of your loved ones. I cannot express how much I regret all the decisions I made leading up to my actions on May 14,” Gendron said in court.

At one point during his sentencing, as a family member of a victim spoke emotionally about how the mass shooting had changed their life, Gendron removed his glasses and cried.

At another point, a man in a gray sweatshirt rushed at Gendron in court but was quickly blocked by security, and Gendron was taken out of the courtroom.

Many victims’ family members said at the time they wanted Gendron to be sentenced to life in prison, rather than the death penalty, so he would have to suffer with his thoughts for the rest of his life.

“I pray to God they do not kill you,” said Brian Talley, family member of Geraldine Talley. “I forgive you, but I forgive you not for your sake, but for mine and for this Black community.”

The federal charges include 10 counts of hate crime resulting in death, 10 counts of use of a firearm to commit murder during and in relation to a violent crime, three counts of hate crime involving bodily injury and three counts of use and discharge of a firearm during a violent crime, according to the US Attorney’s Office for the Western District of New York. Gendron has pleaded not guilty.

Mostly Black neighborhood’s only market

The shooting traumatized the neighborhood of Masten Park on Buffalo’s east side. The area was a food desert and the Tops Friendly Markets was the only supermarket in the neighborhood.

Social media posts and a lengthy document written by Gendron revealed he had been planning his attack for months and had visited the supermarket several times previously. He wrote he chose Tops because it was in a Buffalo ZIP code that had the highest percentage of Black people close enough to where he lived in Conklin, New York.

The document outlined his goals for the attack, according to Erie County District Attorney John Flynn: “To kill as many African Americans as possible, avoid dying and spread ideals.”

At one point, the prosecutor said, Gendron pointed his rifle at a White man but did not kill him and said “sorry.”

Gendron shot four people outside the grocery store and nine more inside before surrendering to Buffalo officers, according to the indictment.

The AR-15 style rifle he used was legally purchased in New York state, but was modified with a high-capacity magazine, which is not legal in the state, authorities said at the time.

In an apologetic note to his family, Gendron said he committed the crime “for the future of the White race,” according to a court affidavit.

CNN’s Nicquel Terry Ellis and Mark Morales contributed to this report.

This story has been updated with additional information.

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