Attorneys for Tops shooter ask judge to let victims keep evidence for use in civil cases

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BUFFALO, N.Y. (WIVB) – Victims of the Tops shooting and their families may soon get a boost as they investigate efforts to file lawsuits related to the attack.

Federal public defenders representing the man who admitted to killing 10 people and injuring three others in the shooting filed a motion Friday to let the victims’ attorneys retain certain evidence deemed “potentially critical to civil litigation they are contemplating.”

Specifically, the defense attorneys are asking United States Magistrate Judge H. Kenneth Schroeder Jr. to let victims’ attorneys use forensic images of Payton 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.

“There are 4.1 terabytes of information, and this is a small segment of that, but still a very large, voluminous segment that has to be studied, analyzed, placed on a platform to allow it to be searched – forensic access to it as well,” said Terry Connors, who represents some of the victims’ families. “All of these things have to be done. They can’t be done just sitting in the office of the federal defender with someone just sitting over our shoulder.”

In September, Schroeder signed a protective order governing discovery. It restricts the sharing of evidence. The order does allow the public defenders to review evidence with victims and their attorneys. But that must happen when a member of the defense team is present. The victims and their attorneys are only permitted to review, and not keep the evidence. They are not even allowed to take notes.

“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 John Elmore, who also represents some of the victims’ families. “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.”

When asked for a comment on the defense motion Friday afternoon, a spokesperson for the U.S. Attorney’s Office said they could not comment on a pending case.

Elmore sent a letter to the office of U.S. Attorney for the Western District of New York, Trini Ross, in January, asking for the Department of Justice consent to modify Schroeder’s protective order. In response, Ross wrote back “After careful review of your requests, the government has concluded that the protective order in the criminal case does not permit disclosure of discovery materials for the purpose of advancing potential civil lawsuits.”

As noted in the motion, attorneys for several victims have been investigating whether to bring civil cases related to gun and body armor manufacturers or the shooter’s use of social media.

In a report released this past October, The New York State Office of the Attorney General wrote that the shooter, who is already serving life in prison after pleading guilty to state charges of domestic terrorism motivated by hate and murder, was “indoctrinated and radicalized” through online platforms and “used these and other platforms to plan, implement, and promote these acts of terror.”

He is still facing 27 federal charges in a prosecution that is eligible to be a capital case. Defense attorneys say he is willing to plead guilty in the federal case if the death sentence is taken off the table.

The next step in this situation is for Schroeder to hear arguments before deciding whether to grant the motion. Elmore said if and when that happens, the attorneys will work quickly to move the civil lawsuit forward.

“These families have experienced a loss, and have joined a club of mass shooting victims all over the country that no one wants to be a member of,” Elmore said. “Those families want us to do what we can do to assist them, and make sure nobody has to live through what they are living through right now.”

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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.

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