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This post is one in a partnership between the Rochester Beacon and veteran reporter Gary Craig, featuring articles published on his Substack site.
Can the words in jury instructions be the difference between life and death?
That’s the question that confronts U.S. District Judge Lawrence Vilardo, who will preside over the capital trial of racist killer Payton Gendron.
Beginning June 15, prospective jurors are scheduled to come to a federal courtroom in Buffalo to answer an expansive written questionnaire.
Before dealing with the questionnaire, the prospective jurors will hear instructions from Vilardo that will describe the allegations against Gendron—he has pleaded guilty to the murders in state court—and inform them that, if selected, they could be part of a two-phase proceeding.
If Gendron is found guilty after trial, and it’s extremely hard to envision a situation in which he would be acquitted, the jurors then will determine whether he should be executed for his murders of 10 Black people at a Tops supermarket in Eastside Buffalo in May 2022.
In the instructions, the prospective jurors will be told of Gendron’s 2022 guilty plea in state court “for these same acts” and the subsequent sentence of life in prison without possibility of parole.
“While the State of New York does not have a death penalty, this is a federal case, involving violations of the laws of the United States, rather than a state case involving the laws of New York,” the proposed instructions say.
But when it comes to a possible death sentence, prosecutors and defense lawyers differ on just how prospective jurors would be told of the choice. A mere change in the order of instructions could unfairly lead the jurors to a decision for death, the defense has argued.
Which should be first: life or death?
In the instructions, Vilardo was offered the option of saying “If, and only if, the jury finds Payton Gendron guilty of any of the capital murder counts, there will be a penalty phase of the trial in which the same jurors will have the responsibility of deciding whether Payton Gendron is sentenced to life in prison without the possibility of release or, instead, sentenced to death.”
These were the words the defense preferred.
Prosecutors preferred this: “If, and only if, the jury finds Payton Gendron guilty of any of the capital murder counts, there will be a penalty phase of the trial in which the same jurors will have the responsibility of deciding whether Payton Gendron is sentenced to death or to life in prison without the possibility of release.”
The change may be minimal, whether the choice of life without parole or death should be mentioned first, but defense lawyers see it as significant.
Providing execution of Gendron as the first option could create a risk that “jurors incorrectly assume that the law or the Court presumes the imposition of a death sentence is the preferred or appropriate sentence in this case,” defense lawyers wrote in a recent court filing.
“The government is seeking the most severe and ultimate penalty available under the law, and it is respectfully suggested that it makes the most sense and is most appropriate to present the sentencing options from lesser to more serious,” defense attorneys added.
In the most recent federal capital trial, with the defendant Robert Bowers, the judge listed life without parole first, according to the defense papers. The jury did choose capital punishment for Bowers, a white nationalist who in 2018 murdered 11 congregants at the Tree of Life synagogue in Pittsburgh.
Prosecutors argue that the government bears the burden of making the case for execution.
“The government submits that throughout these instructions, when listing the two possible potential penalties, the death penalty should be listed first,” court papers show. “The government is seeking this sentence and has the burden of persuasion to obtain this sentence. Thus, it logically should be listed first.
“Only if the government fails to satisfy its burden should the jury consider a life sentence.”
Attorneys will review the questionnaires to determine a pool of possible jurors for the next phase. The trial is tentatively set to start in October.
Trial approaches for victims’ families
With Gendron’s trial now approaching, this week I reached out to Garnell Whitfield Jr., whose mother, Ruth, was one of the 10 murdered at Tops. At 86 years old, she was the oldest victim.
Whitfield has become an activist in the aftermath of the murders. (An earlier story of mine, from USA Today: “His mother was killed in Buffalo’s racist shooting. How he has turned grief into activism”)
“It’s not something honestly that I look forward to or am anticipating,” he said of the trial in a telephone conversation from his Buffalo home.
An opponent of the death penalty, as was his mother, Whitfield said he’d prefer to see Gendron serve life without parole and suffer a prison existence for decades to come.
“He’ll never see the light of day,” Whitfield said. “I’m not worried about him.”
Among the victims’ families there are differing opinions on whether Gendron should be executed. This shouldn’t be seen as a schism, said Whitfield, who previously served as Buffalo’s fire commissioner.
Instead, the differences derive from different life experiences and even different faiths, he said.
Whitfield said he does not plan to attend the full trial but will go some days to show support for the families.
Whitfield and others have sued social media companies and platforms, alleging that Gendron’s racism was emboldened and grew via those networks. A regional appellate court has dismissed those lawsuits, but appeals continue. (See my earlier piece: “Appellate court dismisses lawsuits against social media companies in Buffalo massacre”)
Gendron, who was 18 at the time of the killings, espoused a “white replacement” theory that has circulated in white supremacist circles—a claim that there is an organized effort to replace the power of white people in the United States.
“Nobody’s born to believe and think the way he does,” Whitfield said. “That’s learned behavior. He was influenced by society.”
Gary Craig is a Rochester Beacon contributing writer. A retired Democrat and Chronicle reporter, he now writes on Substack.
The Beacon welcomes comments and letters from readers who adhere to our comment policy including the use of their full, real name. See “Leave a Reply” below to discuss on this post. Comments of a general nature may be submitted to the Letters page by emailing [email protected].
It’s amazing to me that after 4 years this animal, Gendron, has not been executed yet. However, New York State law won’t allow the death penalty. This is the fault of liberal & leftist NYS judges and politicians. Hopefully, the Federal charges will result in the removal of this animal from the face of the earth. By the way the Left has been talking about a form of “Replacement Theory” for years.