Defense attorneys for Buffalo mass shooter Payton Gendron say the Department of Justice is moving forward with the decision-making process to determine if their client could face a death sentence.

Gendron shot and killed 10 Black people at Tops on Jefferson Avenue in May 2022.

His defense attorneys are expecting to meet with the DOJ Capital Case Committee in September, where they will present mitigating evidence to show why they think the U.S. attorney general should not seek the death penalty as part of the federal sentence.

They are also working to reverse a scheduling order set at the last hearing, requiring them to file all non-death penalty related motions by Aug. 31.

Defense attorneys are arguing that every potential motion is completely dependent on whether the DOJ seeks the death penalty, and that this order violates their client's rights to a fair trial and effective assistance of counsel.

The prosecution opposes this request, saying the judge's order fits in with previous capital prosecutions in Western New York.