BUFFALO, N.Y. (WIVB) — In court papers filed Thursday, federal prosecutors accused the attorneys representing admitted Tops shooter Payton Gendron in his federal case of violating a September order by sharing evidence with civil lawyers representing victims and their families.
The feds opposed a modification to the order requested last month by the federal public defenders, who are seeking to allow the victims’ attorneys retain certain evidence. In turn, the prosecutors requested a modification of their own, specifying that evidence should not be disclosed for use in any civil proceeding.
While Gendron has already been sentenced to life without parole after pleading guilty to state charges, he still faces 27 federal charges in a case that is death penalty eligible. In September, United States Magistrate Judge H. Kenneth Schroeder Jr. signed a protective order restricting the sharing of evidence.
Attorneys for the victims and their families, including John Elmore and Terry Connors, say that order has made it difficult to conduct investigations as they pursue civil remedies.
“The only way we have access to the information is to go to Gendron’s lawyers’ office. We represent the crime victims – we have to go to the killer’s lawyers’ office and sit at their computers with two of their attorneys watching us,” said Elmore said in April. “We’re not allowed to use any recording devices, take notes or anything and then try and commit that stuff to memory and then prepare our lawsuits, and that’s totally unworkable.”
The victims’ attorneys supported the motion by federal defenders to let them keep certain evidence that could be useful in their civil litigation, including forensic images of Gendron’s cell phone, laptop, and desktop computer. The motion also covers data related to his computer files, text messages, emails, and social media accounts.
“Importantly, the victims and/or their counsel are already permitted to review all the discovery provided to the defense team, under the terms of the existing Protective Order Governing Discovery. But it requires they do so only in the presence of a member of the defense team… and precludes the victims’ attorneys from retaining copies or even taking notes while reviewing the material,” Gendron’s attorneys wrote in the motion.
In their response to the motion Friday, federal prosecutors argued that the defense team is not complying with the original protective order.
“(T)here is no exception under the existing order that permits the defense to make criminal discovery available to civil attorneys investigating civil lawsuits,” the feds wrote.
At question is a sentence in paragraph seven of the September order, which states, “Defense team members may review the discovery materials with potential witnesses and/or their counsel for the purposes of defense and trial preparation, provided that the potential witnesses and/or their counsel may review the materials only in the presence of a defense team member and may not take notes regarding the content of the discovery materials.”
Prosecutors argue civil litigation preparation does not fall under the umbrella of defense and trial preparation.
Schroeder has given defense attorneys until Friday to respond to the prosecutors’ claims.
An earlier version of this story has been updated to reflect that federal prosecutors filed their court paperwork on Thursday.
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Chris Horvatits is an award-winning reporter and anchor who started working at WIVB in 2017. A Lancaster native, he came to Buffalo after working at stations in Rochester and Watertown. See more of his work here and follow him on Twitter.