KOPP'S SURPRISE CONFESSION CHANGES TRIAL STRATEGY

James C. Kopp has answered the question he asked reporters covering his extradition hearing in France nearly 18 months ago.

"Who killed Dr. Slepian?" Kopp responded as the press shouted questions at him in a courthouse in Rennes, France. "That's the only question you should ask."

Kopp has now told The Buffalo News that he killed Dr. Barnett A. Slepian. Just as federal agents charged, he said he waited in the woods behind Kopp's Amherst home on Oct. 23, 1998, and fired a single shot from a Soviet assault rifle.

Kopp's jailhouse confession, three months before his trial on murder charges in Erie County Court, could change everything about the trial and could change nothing.

Despite the confession, prosecutors still will have to prove the charges against him beyond a reasonable doubt.

Defense lawyers called the interview a bizarre tactic, one that will weaken or destroy a traditional courtroom defense, while the prosecution said it could shorten and simplify the murder case against Kopp.

Kopp's lawyer, Bruce A. Barket, who sat in on the four-hour interview two News reporters conducted with Kopp in the Erie County Holding Center, acknowledged the shift in strategy. Kopp's earlier lawyer, Paul J. Cambria, quit the case because Kopp wanted to turn the trial into a forum on abortion.

"This case is going from a "who done it' to a "why done it,' " Barket said after the Kopp interview but before The News printed the confession.

"Citizens can't vote on abortion in this country," said Barket, a Long Island attorney whose past clients include Amy Fisher, the "Long Island Lolita." "Those individuals on the jury are going to get a chance to vote on abortion in Jim's case."

"Does this go from "who done it' to "why did he do it'?" Clark asked. "Absolutely not. It's a murder case. Why he did it is irrelevant. We don't have to prove motive. It is not a necessary element. We only prove what we have to."

Clark and other lawyers also doubted that County Judge Michael L. D'Amico will allow the trial to become a forum on abortion, as Kopp and his attorney would like it to.

Could a jury be persuaded to sympathize with him, ignore the law and acquit him, a concept called jury nullification?

By telling The News that he shot Slepian - he said he only meant to wound him, not kill him - Kopp is using the same strategy as Rachelle "Shelly" Shannon, accused of attempted murder in the 1994 shooting of a Kansas doctor.

Shannon admitted the shooting in a pretrial interview with a newspaper in Wichita and was later convicted.

Clark said there was plenty of evidence to convict Kopp before his confession, and said Kopp's published remarks will allow prosecutors to present a much cleaner, simpler case to the jury.

Clark called the confession a defense ploy to influence those who eventually will sit on the jury and try the case.

"The only unusual thing here is the timing," the prosecutor said. "This usually happens during a trial, not three months before."

Clark dismissed any theory that Barket might be seeking a change of venue, especially since he agreed to the interview.

"You don't throw tacks in the bed and then claim the bed is uncomfortable," he said.

"A wake-up call'

Kopp's comments also virtually convict him on the federal charges he faces, obstructing access to an abortion clinic under the Freedom of Access to Clinic Entrances Act, said former U.S. Attorney Denise O'Donnell.

"I think his statement puts to rest any dialogue about the theory that James Kopp is an innocent man who was framed by the government," said O'Donnell, who headed the federal investigation from the night of the slaying until she left office in May 2001. "This is a case where the authorities got it right.

"From the outset, I was convinced that James Kopp killed Dr. Slepian and that we had the evidence to prove it," she added. "It was always disappointing that some of his followers were so eager to say the government framed him. I hope this is a wake-up call to them."

Lawyers contacted by The News said it was a risky maneuver for Kopp to admit that he carefully planned and plotted Slepian's shooting and that he meant only to wound him, not kill him.

"In my mind, no attorney committed to defending him in the traditional legal sense would allow him to do this interview," said Anne C. Adams, a former prosecutor and defense lawyer who heads the University at Buffalo Law School's trial technique program. "It's not a trial technique I would teach."

"I have a lot to say, but nothing to say," Cambria said. "I do want to say that I had not yet settled on a final trial strategy for this case. In any case I'm defending, I don't make a final decision on trial strategy until all the pretrial rulings have been made and all the pretrial investigations have been completed."

Michael S. Taheri, a defense lawyer who also teaches at the law school, agreed that Kopp's comments simplifies the job for prosecutors.

"The original defense was connect Mr. Kopp to this crime if you can," he said. "Now we have "I did it' with the why laced in."

An Erie County grand jury indicted Kopp in June 1999 on charges of second-degree murder, reckless endangerment and weapons possession.

The murder charge, the most serious of the three, carries a sentence of 25 years to life. It requires the jury to find Kopp had the intent of killing Kopp to find him guilty.

Enough for a conviction?

If Kopp meant only to wound Slepian, as he said in The News interview, is that enough for a conviction?

"I threw the rock through the window, but I didn't want the window to break?" asked a skeptical Clark. "This is a classic defense ploy. In the face of overwhelming evidence, admit to a lesser crime. Intent is always an element."

Clark does not concede that a jury could not find Kopp guilty, but he also said, in light of Kopp's comments to The News, that he can go back to a grand jury and indict Kopp on other murder charges.

Adams said Kopp's comments would support a felony murder charge. It's a murder charge lodged in the commission of another felony, say a robbery in which a victim dies.

"If he intended to commit felony assault by shooting him and he dies," Adams said, "it's felony murder."

In other words, in this theory, if Kopp shoots Slepian, that would be a felony crime. If Slepian dies, it's a felony murder.

To go before a grand jury to get new indictments with new evidence, or use Kopp's statements against him at trial, Clark said he would have to call The News' reporters as witnesses.

"If a statement is given to a police officer, you call the police officer (as a witness)," he said. "If it's given to a reporter, you call the reporter. Here there isn't any confidentiality issue."

Margaret Sullivan, editor and vice president of The Buffalo News, said in response to Clark:

"I appreciate the district attorney's position, but The News will, as always, resist any efforts to make its reporters an arm of law enforcement.

"Reporters aren't police officers," Sullivan said. "They have a different role entirely in a democratic society. As the highest courts repeatedly have confirmed, reporters cannot do their important jobs properly without the protections clearly provided in the Constitution."

Adams, who has tried cases both as prosecutor and defense lawyer, said she doubted a jury here could be convinced to ignore the evidence and acquit Kopp, through jury nullification.

"The classic case is the 70-year-old man who kills his wife because she has cancer and asks him to," she said. "The jury says, "I know what the judge says, I know what that law is, but I'm going to find him not guilty anyway.'

"Obviously I don't think Kopp's a candidate for that," she said, "but if that's what they're going after, jury selection will be crucial."

"It appears that James Kopp's argument is going to be that this action was permissible because he didn't intend to kill Dr. Slepian," O'Donnell said. "I can't in my wildest dreams imagine that defense being successful before any jury.

"Anti-abortion views, no matter how strong," she said, "can't be used to justify coldblooded murder."

Trials as issue forums

There is also little history locally of judges allowing trials to become forums for larger issues than the crimes charge.

In an anti-war case in 1972, U.S. District Judge John T. Curtin allowed the "Buffalo Five," charged with trying to destroy military records in a federal office, to expand the trial into a forum on the Vietnam War. A jury convicted all five, and Curtin sentenced them to a year's probation.

Adams, who was assigned to D'Amico's court for a year as a prosecutor, said she doubts D'Amico will go along with Barket's trial theory.

"He is a judge who follows the law," she said. "I can't think of a person better for this case."

And if recent history in abortion shootings is any guide, Kopp and Barket face a difficult challenge in their quest for a not-guilty verdict.

In four other highly publicized cases involving shootings of abortion providers, prosecutors had little trouble getting convictions and lengthy prison terms.

Michael Griffin, 32, was sentenced to life in prison for killing a doctor outside a Pensacola, Fla., clinic in March 1993. Griffin's lawyers attacked the prosecution's evidence and tried unsuccessfully to require jurors to watch two anti-abortion videotapes during their deliberations.

Shannon, then 38, of Grants Pass, Ore., was sentenced to almost 11 years in prison. She was convicted of attempted murder in an August 1993 shooting that wounded a doctor outside a clinic in Wichita, Kan. Besides the pretrial newspaper interview, she told a judge at her sentencing there was nothing wrong with what she had done.

Paul Hill, 48, a former Presbyterian minister, is on Florida's death row, awaiting execution for his July 1994 slayings of a doctor and his bodyguard outside a clinic in Pensacola, Fla. Hill represented himself in both state and federal trials. Hill made opening statements criticizing abortion and didn't deny the shootings.

An insanity defense was unsuccessful for John C. Salvi III, 24, who received life imprisonment with no parole for murdering two women at abortion clinics near Boston, Mass., in December 1994. Salvi's lawyers claimed he envisioned himself as a warrior fighting a worldwide conspiracy led by the Mafia, the Ku Klux Klan and other organizations. He committed suicide in prison in November 1996.

PRO-CHOICE ADVOCATES SICKENED BY STATEMENT LINK
The Buffalo News
Gene Warner, News Staff Reporter
November 21, 2002
     Lynne Slepian didn't even read the Buffalo News story detailing James C. Kopp's confession in her husband's killing.
     That's how faithful Mrs. Slepian was to prosecutors' wishes, not to comment on the case Wednesday or even read the story in which Kopp admitted shooting Dr. Barnett A. Slepian to death.
     "I've been instructed not to say anything, in case some of the material is used later, in the trial," she said in a brief phone conversation Wednesday. "I was told not to read it, so I'm not reading it."
     While Mrs. Slepian fended off reporters Wednesday, activists in the local pro-choice community were anything but silent in their reactions to Kopp's confession.
     Many were relieved, even pleased, that Kopp confessed, reducing the chances that he could be acquitted on murder charges.
     But more than that, pro-choice activists were sickened and horrified - in their own words - about several elements in Kopp's reported comments, including his claim that he didn't try to kill Slepian, his details about how he stalked Slepian and the prospect that his murder trial could attract "James Kopp wanna-bes" to Buffalo.
     The angriest seemed to be Glenn E. Murray, a local pro-choice attorney and a good friend of the Slepian family.
     Murray said he was sickened by the published comments, which he called "a manifesto preaching James Kopp's twisted justification of terrorism" against abortion providers.
     "I'm horrified that in his trial, with his change in defense gears after he claimed he was innocent when he was arrested in France, he now hopes to publicly promote using bullets and bombs against doctors and clinics," Murray added, during a lengthy interview. "This will again make Buffalo the battleground of an anti-abortion campaign of extortion, including veiled and not-so-veiled threats of violence."
     Murray now is bracing for the circus that he fears the upcoming murder trial will become. A murder trial is expected to begin in February before Erie County Judge Michael L. D'Amico.
     "I'm horrified to think his trial will be a convention of pro-life extremists, including cheerleaders for violence and James Kopp wanna-bes," Murray said.
     Kopp's confession led several pro-choice leaders to compare him to either Oklahoma City bomber Timothy McVeigh, al-Qaida suicide hijackers or the Washington, D.C., snipers.
     "Every citizen outraged and sickened by al-Qaida should be similarly outraged and sickened by James Kopp," said Lucinda M. Finley, a University at Buffalo law professor. "The only difference is the number of people killed or injured."
     Finley said she felt a mixture of relief, outrage and being sickened about Kopp's confession.
     "I feel anger and disgust that anybody could be so twisted and evil that they believe the way to promote their political cause is to go around and shoot people," she added. "That sickens me." Marilynn Buckham, administrator of Buffalo GYN Womenservices clinic, said she was angry about the possibility that Kopp could be turned into a martyr, just as some tried to portray McVeigh.
     But she's confident that Western New Yorkers in the jury pool for Kopp's upcoming murder trial won't believe that he was justified in the killing.
     "He's insulting the people in this community by thinking that he could get acquitted," she said. "People in this community know what he is. He's a coldblooded assassin and a murderer. He's no better than the people from 9/11 or the (Washington) snipers."
     And several pro-choice activists snickered at Kopp's claim that he meant only to wound, not kill, Slepian.
     "James Kopp claiming he only shot to wound is like Timothy McVeigh saying he never intended to hurt any children when he blew up a building with a day care center," said Murray, the pro-choice attorney.
     Eleanor Smeal, president of the Feminist Majority Foundation, a group in Arlington, Va., that sponsors abortion-clinic defense programs, called Kopp's confession a decision to try to reduce his sentence.
     "What this does is shift the talk away from the question, "Did he do it?' and toward his argument that he did it, but didn't mean to kill him," she said.
     No jury ought to buy that argument, Smeal added. Given that Kopp was on the lam for 2¹/2 years and still won't name his accomplices, "no one should believe his claims of remorse," Smeal said.
     Like others, Helen Dalley, president of the local Pro-Choice Network, emphasized that the upcoming murder trial should focus on the shooting itself, not on the topic of abortion. Dalley also questioned use of the term "pro-life" for Kopp now.
     "I can't say that somebody is pro-life if they're out there killing people," she said. "I do believe that the pro-life movement has turned into a deadly movement for the extremists."
     Pro-choice supporters also vowed not to be cowed by the violent acts of a few.
     "Terrorism will not keep reproductive health providers from providing safe access to care," said Dana P. Neitlich, chief executive officer of Planned Parenthood of Buffalo and Erie County. "It is evident on a day-to-day basis to those on the front lines of providing care, that where there is one James Kopp, there are many. . . . Mr. Kopp's act of terror must be adamantly opposed by a free-thinking American society."
     Murray, the pro-choice attorney, mentioned all the pro-life literature claiming that Kopp couldn't have killed Slepian, that he wasn't violent, that his eyesight wouldn't allow him to fire such a precise shot, that the government framed him and even that Slepian could have been killed by pro-choice extremists fearing he might stop performing abortions.
     "These people who published 100-page essays claiming James Kopp was framed must feel pretty stupid now," he said.
     Murray is concerned about the prospects now for Kopp's murder trial and for the extremists he fears it will attract.
     "This trial is like the trials of other pro-life assassins who raise a defense not recognized by law," he said. "He's going to have a tough time finding jurors who will excuse a premeditated, deliberate, political assassination. This was an extortionate attack on democracy, hoping to succeed with bullets after failure at the ballot box."
     Murray also was asked how he would react as a friend of both Barnett and Lynne Slepian.
     "Kopp confessing how premeditated and deliberate his stalking and shooting was makes me sick, especially when he has no remorse and wants to use the trial to encourage and condone assassination," he replied.

Washington Bureau Reporter Jerry Zremski contributed to this report.

A TRIAL THAT SHOULD CENTER ON MURDER, NOT ABORTION LINK
The Buffalo News/Editorial
November 21, 2002
     Beware the zealot. Mistrust the convert bent on martyrdom. Of such specimens murderers are made.
     But then, James Kopp doesn't believe he is a murderer. When he lurked in the woods outside Dr. Barnett Slepian's home and took dead aim, he says, he meant only to injure the Amherst abortion provider, not to kill him. And, besides, he did it for a reason he deemed to be satisfactory. He shot the doctor to prevent him from performing any more abortions, Kopp told two Buffalo News reporters in a jailhouse confession.
     Jailhouse confessions usually are self-serving and always suspicious. The motive this time, though, appears to be strategic.
     By admitting what prosecutors were preparing to try to prove, anyway, Kopp and his lawyer, Bruce Barket, have taken the only path they could to make a trial issue of Kopp's all-consuming opposition to abortion. By acknowledging it as his motive, the defense may be able to raise the issue of abortion and try to win acquittal or conviction on a lesser charge than second-degree murder.
     The argument would be that an act committed to stop a crime - to stop more killings, in Kopp's view - is not itself a crime. But there's a problem with that. Abortion is not a legally defined crime, however much Kopp and his attorney may want to raise moral definitions as a defense. And society rightly takes a dim view of those who would take the law into their own hands.
     Kopp told the reporters a tale that seems believable in its outlines and many of its specifics - maybe even all of them. His description of hiding in the woods outside Slepian's home rings true. So does his acknowledgment of sudden conversion from a "pagan" life to one of celibate, pro-life militancy.
     But his claim that he intended only to wound Slepian by shooting him in the shoulder is unknowable. Perhaps he is the marksman he says. Maybe he really was distressed when he found out, a day after the shooting, that he had taken Slepian's life. Or maybe he is shrouding a lie in layers of enveloping truths, hoping to earn the benefit of the doubt. Unless he pleads guilty, a jury will have to answer that question.
     As a matter of New York law, though, the distinction may be irrelevant. By his own admission, Kopp committed an act that was liable to cause death - and, in fact, did, even though he says he hit the spot he aimed at. A jury might convict on a lesser offense, but it doesn't have to. Beyond that, if someone commits homicide by acting with "depraved indifference" to life, then he is guilty. Kopp's indifference to Slepian's life could hardly have been more depraved.
     Hiding in the dark outside the physician's home, he raised his rifle - one he purposely bought far from New York - took aim and waited until he had the shot he wanted. It makes no difference if he set his gun sight on the doctor's head or his shoulder.
     By his own description, Kopp was conducting himself in a way that was liable to result in the death of his intended victim. It is the kind of depravity that he imputes to abortionists, and he cannot now claim, with any credibility, that it was an accident.
     The state indictment now charges that Kopp intentionally murdered Slepian, but with Kopp's admission, District Attorney Frank Clark could seek to add the theory of depraved indifference to the indictment.
     The federal charge seems even clearer. Kopp's description of his action tracks the statute, which defines murder as homicide committed through the intentional use of deadly force.
     Kopp, now an admitted killer, is also an admitted terrorist. "To be sitting in a room, talking to your wife one minute, and in the next moment, to be shot, is terrifying," he told reporters Lou Michel and Dan Herbeck. Indeed, it is. Kopp knows it and, while he says it troubles him, he doesn't apologize for it.
     Even more disturbingly, Kopp also suggested he is a continuing threat to people with whom he disagrees on the abortion issue. In the interview, Kopp did not deny involvement in the shootings of other abortion providers, nor, given the chance to rule it out, would he forswear intent to "do something" additional if he is set free. This is a man on a mission.
     Abortion is a troubling issue for many people, even some who are pro-choice. Both sides are capable of mounting persuasive arguments. With his intentional shooting of Slepian, though, Kopp has damaged the pro-life cause by painting its members not as activists committed to a legitimate purpose, but as extremists and frauds. In the words of one pro-life caller to this newspaper Wednesday, "this guy has set the movement back 10 years."
     Indeed, Kopp says he understands that many of his pro-life supporters will now see him as a hypocrite. They should, because that is what he is. But so are many humans, in one way or another. Most of them, though, are not killers, as well. Kopp is. Now, we have his word on it.

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