Payton Gendron Now: Federal Trial, Pretrial Rulings, and Defense

Payton Gendron’s federal death penalty trial is underway in Buffalo, with jury selection that began June 15, 2026, testimony expected to start in October 2026, and proceedings projected to run into early 2027. Gendron, now 22, is already serving life without parole on state murder and domestic terrorism charges for the May 14, 2022 racist mass shooting at a Tops Friendly Markets store on Buffalo’s east side. The federal trial is the only remaining avenue by which he could be sentenced to death.

Where the Case Stands Now

Jury selection formally began June 15, 2026, when the first of roughly 1,200 summoned potential jurors arrived at the federal courthouse in downtown Buffalo. Groups of 65 are called in per session to complete a detailed questionnaire that takes about two hours. That phase is expected to span two weeks. Both legal teams then review the questionnaires, and jurors who advance return in August for individual questioning by attorneys and U.S. District Judge Lawrence J. Vilardo.¹

The court aims to seat 12 jurors and at least 4 alternates. Each side has 20 peremptory challenges.²

Gendron appeared in person on June 15 for the first time since April 2025. He sat unshackled as Judge Vilardo told prospective jurors the case involves hate crimes committed with a firearm and that, if they returned a guilty verdict, they would decide between life in prison and death. Some potential jurors visibly reacted.³ The judge also warned that potential evidence includes graphic body-camera-style video Gendron recorded during the attack and his written manifesto.⁴

Gendron is held at the Livingston County Jail at the request of the U.S. Marshals Service while continuing to serve his state life sentences.⁵

Why There Is a Federal Trial at All

Gendron pleaded guilty in Erie County Court on November 28, 2022 to 15 state counts, including one count of domestic act of terrorism motivated by hate, ten counts of first-degree murder, three counts of attempted second-degree murder as a hate crime, and one weapons count. New York has no death penalty, so the terrorism charge carried an automatic sentence of life without parole. Judge Susan Eagan formally imposed that sentence on February 15, 2023.⁶⁷

The federal case runs on a parallel track. A federal grand jury in the Western District of New York returned a 27-count indictment on July 14, 2022, and Attorney General Merrick Garland authorized the Justice Department to seek the death penalty on January 12, 2024. It was the first new federal capital case initiated under the Biden administration.⁸

Gendron’s defense team had offered to plead guilty to the federal charges in exchange for a life sentence, but the DOJ rejected the offer. Officials reportedly applied a “worst-of-the-worst” standard for what they termed “egregious cases of hate-fueled mass acts of terror.”⁹ Gendron has pleaded not guilty in the federal case.¹

The Charges

The federal indictment carries 27 counts: 14 violations of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act and 13 firearms offenses tied to using, carrying, or discharging a firearm during crimes of violence. The hate crimes counts break down into 10 counts of hate crimes resulting in death, 3 counts involving bodily injury and attempted murder of the wounded survivors, and 1 count alleging an attempt to kill additional Black people. The indictment includes special findings that the offenses were committed after “substantial planning and premeditation to commit an act of terrorism.” The case is docketed as No. 1:22-cr-00109 before Judge Vilardo.¹⁰¹¹

Pretrial Rulings That Shape the Trial

The pretrial phase has stretched more than two years. Several rulings will directly affect what jurors hear.

Aggravating Factors

The defense moved to dismiss the death-eligible counts (Counts 11 through 20) and challenged the grand jury process. Judge Vilardo denied both motions.¹² He also struck four of the government’s proposed non-statutory aggravating factors: “Injury to Surviving Victims,” because victim-impact evidence in capital sentencing is limited to homicide victims; “Racially Motivated Killings,” because the Federal Death Penalty Act bars the jury from considering the race of victims; “Attempt to Incite Violence,” because Gendron’s manifesto did not meet the incitement standard under Brandenburg v. Ohio; and “Selection of Site,” which the government did not appeal. All four statutory aggravating factors survived.¹³

Prosecutors appealed the racial-motivation ruling to the Second Circuit, arguing they should be allowed to present Gendron’s hatred of Black people as an aggravating factor even if the jury cannot weigh victims’ race. Defense attorney Daniel Habib said asking a capital jury to consider the defendant’s racial hatred while ignoring victims’ race is a distinction a “lay jury wouldn’t be capable of reconciling.”¹⁴ Judge Vilardo clarified that prosecutors can still introduce evidence of Gendron’s racist motives in other contexts, such as proving intent and premeditation.¹³

Venue

The defense sought to move the trial out of Western New York, citing intense local coverage, concerns about jury pool diversity, and the precedent of the Timothy McVeigh trial being relocated from Oklahoma City. Prosecutors argued that keeping the trial in Buffalo was critical for the affected community and that an impartial jury could be drawn from a district population of roughly 1.5 million. In February 2026, Judge Vilardo denied the request to move the trial to Manhattan, though Rochester remained a possible alternative venue within the district.¹⁵

The Age-Based Constitutional Challenge

Gendron was 18 at the time of the shooting. His attorneys argue that recent neuroscience shows 18-to-20-year-olds have brain development comparable to juveniles, extending the reasoning the Supreme Court used in Roper v. Simmons (2005) to ban the death penalty for those under 18.⁸

Evidentiary hearings on the issue, originally scheduled for early 2026, were postponed. The hearing will now take place after the trial, and only if Gendron is sentenced to death, with the purpose of building a record for a potential appeal to the Supreme Court. The presiding judge acknowledged that the issue cannot be resolved at the district court level.¹⁵

How the Trial Will Be Structured

The trial is a two-phase proceeding. First comes the guilt phase. If the jury returns a guilty verdict on a death-eligible count, the same jury then hears a penalty phase and weighs whether Gendron should be executed or serve life in federal prison on top of his existing state sentences. If the jury does not unanimously agree on death, the sentence defaults to life without parole.³

Testimony is expected to begin in October 2026. The trial is projected to last three to four months, potentially running into early 2027.¹⁶

Defense Strategy

Gendron’s attorneys face an unusual posture: their client has already pleaded guilty in state court to the same underlying conduct. They have focused on ensuring jurors can set that prior plea aside and evaluate the federal charges independently.¹ Gendron is represented by a team from the Federal Public Defender’s office, including Daniel Habib, Sonya Zoghlin, MaryBeth Covert, Monica Foster, and attorney Julie Brain.¹⁷

Their primary effort appears aimed at the penalty phase. The defense has retained expert witnesses for the age-based challenge and has argued that life imprisonment without parole should be presented to jurors before the death penalty option, framing the sequence as proceeding from “lesser to more serious.”¹⁸ The defense also sought access to the Erie County District Attorney’s files from the state prosecution, but Judge Vilardo denied the request, finding that a protective order barred their release.¹²

The Justice Department’s decision to press for death carries its own political tension. President Biden campaigned on opposing the death penalty, and Attorney General Garland imposed a moratorium on federal executions in July 2021 that remains in effect even as this case moves forward.⁹

Divided Views Among Families and the Community

The question of whether the federal government should seek death for a man already serving life without parole has split Buffalo and the victims’ families. Some relatives have said they want the federal trial so the world can hear a full public accounting of what happened on May 14, 2022.¹⁹

Others oppose the death penalty on moral or practical grounds. Garnell Whitfield Jr., whose 86-year-old mother Ruth Whitfield was killed, has been one of the most vocal opponents, saying his position is consistent with his mother’s own beliefs. He has said differing views among families reflect varying life experiences and faiths rather than any deep rift.¹⁸

Abraham Bonowitz, executive director of Death Penalty Action, has argued the trial amounts to imposing federal capital punishment “on a state that has rejected the death penalty” and that it forces victims’ families through renewed pain for an execution that, if it came at all, would likely take decades. Paul McQuillen, chairman of the Western New York Coalition Against the Death Penalty, questioned why the DOJ is pursuing death here when it accepted a plea to life without parole in the 2022 Club Q shooting in Colorado Springs.¹⁶

1
ABC News. Jury Selection Reaches Pivotal Moment in Federal Trial in Buffalo
2
Spectrum News. Factors That Go Into Selecting a Jury in Tops Mass Shooting Case
3
WKBW. Jury Selection Begins in Federal Death Penalty Trial of Payton Gendron
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WIVB. Jury Selection Begins in Tops Mass Shooter Federal Trial
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13WHAM. Buffalo Tops Gunman Moved to Livingston County Jail
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Erie County District Attorney. Broome County Teen to Serve Life in Prison Without Parole
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VOA News. White Supremacist Gets Life in Prison for Buffalo Massacre
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Death Penalty Information Center. U.S. Department of Justice Authorizes First Federal Death Penalty Case for Payton Gendron
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Good Morning America. Justice Department to Pursue Death Penalty Against Buffalo Supermarket Shooter
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ATF. Federal Grand Jury Indicts Accused Tops Shooter
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CourtListener. United States v. Gendron
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Spectrum News. Judge Blocks Access to Records in 5/14 Shooting Federal Case
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Courthouse News Service. Payton Gendron Government Appellee Brief
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Courthouse News Service. Feds Ask Second Circuit to Reinstate Racial Hatred Factor in Buffalo Mass Shooter’s Trial
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Spectrum News. Federal Trial of Buffalo Mass Shooter Will Not Be Moved Outside of WNY District
16
WGRZ. Jury Selection for Payton Gendron Federal Death Penalty Trial
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CourtListener. United States v. Gendron – Docket
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Rochester Beacon. As Trial of Buffalo Mass Killer Nears, a Life-or-Death Issue
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Spectrum News. Gendron in Court as Jury Questionnaires in Federal Death Penalty Trial Begin