BUFFALO, N.Y. (WIVB) – Attorneys representing the Tops shooting suspect have filed paperwork asking a Buffalo City Court judge to stop Erie County District Attorney John Flynn and his team from speaking publicly about the case.
Both sides appeared in front of Hon. Craig Hannah to discuss the motion. Payton Gendron, the suspect charged with first-degree murder and accused in the shooting which killed 10 people, appeared as well. It ended with Hannah telling attorneys on both sides not to speak to the media, for now.
Robert Cutting, one of the defense attorneys, referred to some of Flynn’s comments as “objectionable commentary” The motion references two which defense attorneys take issue with: one Flynn made during a May 16 press conference in which the district attorney said the defense team withdrew a request for a forensic examination.
“So the mental health forensic part of this has now become a moot point,” Flynn said.
The second comment came in a Fox News interview in which Flynn spoke about potential additional charges against the suspect.
“We are gravely concerned that when the time comes and it is necessary for a jury to be selected to preside over the trial,” explained Cutting, “that that jury pool will be tainted and poisoned in such a way that it will be impossible for him to get a fair trial.”
Flynn defended his comments. He also told Hannah that he has stressed publicly that the defendant is innocent until proven guilty.
In that same May 16 press conference, Flynn said, “I understand emotions are high. I understand the rawness of this matter. However, I do not operate in the court of public opinion. I operate in a court of law. And this defendant is innocent until proven guilty.”
“It is an accusation. It is an allegation. And that’s all it is,” the district attorney added.
In front of Hannah on Wednesday, Flynn said he has received blowback for those comments.
“I’m deluged with phone calls to my office, some threatening. Threatening phone calls against me to my office because of what I said on his behalf,” said Flynn. “What do I get for it? I get a motion accusing me of ethical violations.
“It’s not right, your honor. I did nothing wrong here.”
Cutting later told the judge it was not the defense team’s intent to allege that Flynn acted unethically.
Last week, prosecutors said a grand jury had voted for an indictment against the defendant. An indictment has not yet been shared publicly and it still still unclear what charges were voted on. Flynn told Hannah and the defense team that, per usual practice, he only plans to speak to the media after the suspect is arraigned on an indictment and not again until after a trial.
Hannah said he would rule on the defense team’s motion in a week or so. He suggested that the sides should meet to discuss whatever commentary is shared publicly.
“Until that, I think both sides should refrain from any commentary to the media,” Hannah said.
Chris Horvatits is an award-winning reporter who joined the News 4 team in December 2017. See more of his work here.