Buffalo mass shooter’s lawyers want judge replaced

Will the U.S. Attorney General seek the death penalty for the May 14, 2022 Buffalo shooting that killed 10 people and wounded 3 at a Tops grocery store?

But according to the judge in charge of pretrial matters in the case, it’s not an issue that should keep anyone waiting.

So U.S. Magistrate H. Kenneth Schroeder, Jr. pushed ahead last month, over the objections of his legal team, by setting a deadline for pretrial motions and responses by prosecutors and Gendron’s federal defenders.

Attorneys have now appealed Schroeder’s rescheduling order, asking a federal district judge to effectively replace Schroeder in pretrial matters.

Attorneys argued that Schroeder had erred in asking the defense to file pretrial motions within 90 days, violating Gendron’s right to a fair trial and effective legal assistance.

Instead, defense attorneys want to wait until U.S. Attorney General Merrick Garland decides how to proceed with the allegations. During a visit to Buffalo last year, Garland called the Topps shooting a “death penalty crime.” But he has yet to reveal his plans to prosecute Gendron.

“It is neither extraordinary nor unreasonable to require a pretrial motion to be filed in a potential death penalty case pending a determination of whether it is in fact a death penalty case,” said court filings by federal elected assistant Sonya A. Zoglin, federal elected assistant Ann M. Berger, senior litigator Marybeth Covert, and others.

If the Attorney General seeks the death penalty, Mr. Gendron’s lawyers would have to present a “mitigating” factor, a reason to show him mercy, in advocating life imprisonment instead.

If the Attorney General does not seek the death penalty, Mr. Gendron will plead guilty to a federal complaint without producing any evidence before being sentenced to life in prison by the federal government.

Gendron’s attorneys say they don’t know what Garland will decide, what evidence he’ll seek to cover up, or what other allegations he should seek.

Gendron has already pleaded guilty to 10 counts of first-degree murder and three counts of attempted second-degree murder, among other counts, and has already been sentenced to life in prison in state court. That means Gendron’s guilt case against 27 federal charges, including 10 for committing a hate crime that resulted in his death, has already been settled.

But while the facts of what happened on May 14 may be clear, the mitigating factors that could influence whether Gendron is sentenced to death are not true, defense attorneys say.

Defense attorneys must find all reasonably available mitigating evidence, and if the death penalty is sought, “the constitutional obligation to conduct an exhaustive mitigating investigation should not be diminished just to meet schedule goals,” the defense team said in a court filing.

Meanwhile, the prosecution agreed with Mr. Schroeder’s case schedule, even calling for a more comprehensive schedule beyond the standard schedule typically issued for less complex, non-capital eligible cases.

“As of July 14, 2023, 426 days have passed since the Topps shooting, 393 days have passed since the government turned over the bulk of the evidence in the prosecution stage, and 296 days have passed since the government released copies of most of the case files to the defense,” prosecutors said in court filings last week.

Prosecutors and defense attorneys have appeared several times against Schroeder, and the judge previously agreed to the defense’s request for several additional months to examine evidence.

According to filings from U.S. Assistant Attorneys Joseph M. Tripi and Brett A. Harvey, along with Laura Gilson, trial attorney for the U.S. Department of Justice’s Office of Civil Rights, “Judge Schroeder’s decision to establish a scheduling order is not only within his authority, but also reasonable given the long procedural history leading up to that decision.”

In response to the defense team’s appeal, the prosecution did not oppose changing the existing filing schedule, leaving it to U.S. District Judge Lawrence Bilardo to decide whether to revoke Bilardo’s order assigning pretrial matters to Schroeder.

Judge: Let’s get started

At a tense court hearing last month, Schroeder disagreed with defense counsel’s argument that he should wait for a death sentence before filing a motion.

“It could take another five years to find out what happens if I take your position,” Schroeder said.

He also cautioned the Justice Department about how long it took to decide whether to seek the death penalty.

At the hearing, the judge said, “You have committed a heinous crime, admitted by the defendant involved in hate, racism and all other horrific qualities.” “I don’t understand why it takes over a year.”

Appointed to the Justice of the Peace in 2000, Mr. Schroeder previously served as an assistant federal attorney in Washington, D.C., and from 1969 to 1972 as a federal attorney in western New York.

“I hate to keep telling my experience, but I do it because I want people to understand that I have a good working knowledge of this whole process,” he said at the hearing.

Schroeder said he could not set a deadline to sentence Garland to death. But he can set a pretrial deadline for lawyers to submit and respond to evidence allegations.

“If the defendant intends to attack the search warrant or what is seized, it has nothing to do with mitigation,” the judge said at the hearing.

“If he is sentenced to death, we want to put together a full profile of this defendant’s life and the impact of other factors that may have influenced his development so that we can explain why this defendant should not be sentenced to death,” Schroeder said.

“I know it takes a lot of work,” he said. “But legal issues like whether warrants are valid or whether evidence should be covered up for other reasons, we can start addressing them now while you’re still taking mitigation measures.”

Defense: Decisions Affect Everything

At the hearing, Mr. Zoglin said the evidence presented to the defense so far, including social media accounts, video recordings, texts and documents, was overwhelming.

“No one would have looked at so much evidence up to this point,” she said.

If forced to file a motion, she said, “you’ll never know what evidence you’re trying to cover up.”

“We know what the evidence is,” she said at the hearing. “Until we know if the government is seeking the death penalty and the basis for it, we will not know what evidence the government will want to use.”

She opposes the idea that the legal aspects of litigation (such as seeking to conceal evidence) and mitigation measures can be separated.

“If this is a serious case, they are one thing,” she said.

Prosecutor “Double tracks”

As Justice Department officials deliberate the death penalty issue in Washington, filing and responding to complaints in Buffalo federal court “could be on a double trajectory,” U.S. assistant attorney General Tripi said at a hearing last month.

The prosecution team supported Schroeder’s rescheduling order, but did not object to Bilardo taking over pretrial matters on his behalf.

The government anticipates that all judgments rendered by magistrates will be appealed, with more allegations and oral arguments.

“This process not only undermines the goals of justice economy and efficiency, but also increases media coverage of the case and courtroom attendance. Understandably, victims and their families feel the need to stay informed and attend,” prosecutors said in a filing last week.

Mr. Tripi’s remarks at a public hearing last month were the last for federal prosecutors to speak on the status of Mr. Garland’s decision.

“It’s not only at the Ministry of Justice headquarters, including the Civil Rights Office, but also at the higher levels of local government, and that’s all I can really say about it,” Tripi said.

“From where we are sitting, you can see that we are fully committed to pushing this issue,” he told the judge. “We will continue to do so. We are not the final decision makers.

“I understand the court’s frustration, and if the public is frustrated, I understand that,” he said.

Meanwhile, the victim’s family, as well as Gendron, are awaiting sentencing, the judge said.

“All I know is that this horrible event happened over a year ago,” Schroeder said. “These poor families carry the burden of not knowing what will eventually happen.