MANHATTAN (CN) - Federal prosecutors on Wednesday asked a Second Circuit panel to reverse a lower court which denied the government's requests for specific sentencing considerations of racial animus and incitement of violence in the Tops supermarket mass shooter's upcoming hate crimes trial.

Payton Gendron, the white supremacist who killed 10 Black people at a Buffalo supermarket in May 2022, is currently serving out a sentence of life in prison without the possibility of parole after pleading guilty in November 2022 to multiple state murder charges.

Gendron, 22, faces the death penalty in a parallel federal case charging him with hate crimes and weapons counts, set to commence jury selection in August.

Ahead of that federal trial in the Western District of New York, U.S. District Judge Lawrence J. Vilardo tossed out several of the aggravating factors included in the government's notice of intent to seek the death penalty, which jurors could mull during the penalty phase of the trial: injury to surviving victims, racially motivated killings, and attempt to incite violence.

The Department of Justice filed an interlocutory appeal to the Second Circuit, seeking to have those additional aggravating factors reinstated when offering information to the jury.

"The district court's striking of these three aggravating factors essentially effectively precludes the government from offering information to the sentencing jury the specific factors distinguishing his conduct, which make his particular conduct more blameworthy in order to warrant death as the penalty," Assistant U.S. Attorney Tiffany Lee told the Second Circuit panel during oral arguments on Wednesday morning.

U.S. Circuit Judge Joseph Bianco interjected that the core argument is that a jury considering whether it imposes the death penalty should be able to consider racial motivation as a separate aggravating factor.

"If someone is motivated by race, regardless of what that race is white, Black, doesn't matter, that that's more reprehensible for purposes of the death penalty, and it should be able to be considered relevant as a separate aggravating factor. What's wrong with that," Bianco, a Donald Trump appointee said.

U.S. Circuit Judge Richard Sullivan noted the predicate offense for the death-eligible count is a hate crime.

"So, clearly Congress understands that hate crimes are worse than other kinds of crimes that might have the same result," he said.

Sullivan, a Donald Trump appointee, asked the prosecutors if they would consider rewriting the proposed aggravating factors to quell any potential confusion.

"It seems to me that, nonetheless, the way you've written the factor here sort of invites the jury to be focused on the race of the victims, and it seems to me you could have written it a little differently to make less of a tension between 3593(f) and your permissible objective of getting the jury to focus on what were the motivations for the crime," Sullivan said, referring to the section of U.S. Code governing special hearings to decide whether a death sentence is justified.

Regarding the inciting violence aggravating factor, Lee said prosecutors specifically used the language of incitement because Gendron himself had used such describing how he was inspired to commit his attack after watching a video of another white supremacist, Brenton Tarrant, who livestreamed himself killing 51 people at a mosque in Christchurch, New Zealand.

"He wanted to incite violence and retaliatory action and inspire similarly like-minded people to follow in his stead, as he was inspired by the Christchurch shooter, and that's why he live streamed his event, his mass shooting at the Tops supermarket," she told the panel.

Bianco asked what the harm would be if the panel remanded the case to the lower court to have the aggravator factors rewritten.

"What's the prejudice to the government if we were to conclude that it's poorly drafted and raises additional risks that would otherwise not exist," he asked.

Lee stressed the pretrial proceedings are rapidly approaching this summer and clock is already ticking. "The concern is we do have jury selection questionnaires going out in three weeks, and the first juror is supposed to be voir-dired in August," she said.

Gendron was represented at oral argument by federal defender Daniel Habib, who argued the lower court's order rested on the correct construction of the Federal Death Penalty Act and should be affirmed.

In an appeals brief, Gendron's defense argued under the U.S. Constitution a federal capital jury "shall not consider the race of any victim" in deciding whether to impose a death sentence.

"But the government drafted an aggravator asking the jury to weigh Gendron's hatred of 'Black persons' and the role that his animus toward 'Black persons' played in the shooting," he wrote in an appellee filing. "The district court reasonably determined that a lay jury wouldn't be capable of reconciling these conflicting concepts."

U.S. Circuit Judge Alison Nathan, a Joseph Biden appointee, rounded out the panel, which did not indicate when or how it will rule.

On May 14, 2022, Gendron attacked shoppers and workers with a Bushmaster XM-15 .223 caliber rifle at a Tops Friendly Market in Buffalo after driving more than 200 miles from his home in rural Conklin, New York. He targeted the supermarket because of its location in a primarily Black neighborhood, and livestreamed the massacre online from a Go-Pro camera attached to his tactical helmet.

Gendron had inscribed his rifle with the names of white supremacist mass murderers - Dylann Roof, Robert Bowers, Brenton Tarrant - and racial slurs and phrases like "Here's your reparations!" and "The Great Replacement."

Those killed in the Tops supermarket mass shooting ranged in age from 32 to 86. Three others were wounded.

The surviving victims will be allowed to testify both at the guilt phase of the federal trial in support of the attempt to kill hate crime offense, and during the penalty phase to prove that Gendron's actions created a grave risk of death to one or more persons, and that he attempted to kill more than one person in a single criminal episode.

Source: Courthouse News Service