Posted on 03/12/2003 2:08:00 PM PST by Marianne
No witnesses will testify; judge will hand down verdict in Slepian killing
James C. Kopp rejected the advice from two of his three lawyers and even the judge Tuesday, giving up his right to let a jury decide the evidence against him in the October 1998 murder of Dr. Barnett A. Slepian.
And Kopp, in an even more unusual move, agreed to give up his right to a traditional trial.
Kopp said he wants the judge - Michael L. D'Amico of Erie County Court - to find him innocent or guilty based on a 30-page summary of the evidence prepared by the district attorney's office and approved by his lawyer, Bruce A. Barket.
Tuesday's stunning developments in an already unusual case mean:
• Instead of a month, Kopp's trial is now expected to last a day. It will begin and end on Monday.
• Instead of 60 witnesses called by Deputy District Attorney Joseph J. Marusak, there won't be a single witness. And that includes Kopp, who had wanted to use the trial as a forum for his anti-abortion views.
• Instead of a jury that might be swayed by Kopp's belief that abortion is murder and that he was justified in shooting Slepian - a theory known as jury nullification - a judge will now decide solely on the facts and the law.
"It actually makes a great deal of sense," Barket said of the decision to scuttle the jury, outside the courtroom. "No one disputes that Jim Kopp shot Dr. Slepian."
It was Kopp who ruled out any mystery when he told The Buffalo News in November that he shot Slepian but didn't mean to kill him. He only wanted to stop him from performing abortions, Kopp said.
Since the only question remaining at trial is why Kopp shot Slepian, Barket said, Kopp believed the best way to proceed was to put all the evidence before the judge and let him decide if he is guilty of murder.
Although Kopp had wanted the trial to be a forum, he felt the pro-life message he would deliver in his testimony would be drowned out by the day-to-day recitation over a month's time of the details of how he shot Slepian, said Barket.
"Jim certainly believes this is the best way to proceed," said Barket, a Long Island attorney who shares Kopp's views on abortion. "He's doing it because this is the best thing for him, and for a cause that has been very dear to his heart his whole life."
Barket said he feels the judge could look at the case and find Kopp innocent of both counts, intentional murder and causing Slepian's death through depraved indifference. He said Kopp would never plead guilty because he does not feel he did anything criminal.
The move to give up a traditional defense and use the rare procedure, known as a "stipulated bench trial," is not winning Barket any praise from local defense attorneys.
"From my understanding of the case, this is a long way around to pleading guilty," said Anne E. Adams, a defense lawyer and former prosecutor who is head of the trial technique program at the University at Buffalo Law School. "It's a very bizarre move."
"You see it sometimes in justice courts on small traffic-type charges," Daniel J. Henry Jr., a defense lawyer and former prosecutor, said of both sides agreeing on the facts. "But on a major homicide case where the sentence is a minimum 15 to 25 years with a maximum of life? I've never seen it."
Neither has District Attorney Frank J. Clark, who has prosecuted cases for 28 years in state and federal courts. But Clark is finding no fault with the procedure. He agrees it's a prosecutor's dream.
"I avoid the uncertainty of witness testimony, including their lack or failure of memory," Clark said. "I have no downside of cross-examination. The proof goes in exactly the way I want it and the way I want it considered."
Trial costs downplayed
And while Clark says saving money was not the motivation, a monthlong trial was expected to cost several million dollars. Clark said the governor's office had promised to help defray the costs.
"Money has never been a consideration in this case from day one," Clark said. "There are some things you just can't put a dollar sign on, and this is one of those."
Clark said he told Slepian's widow, Lynne, about the turn the case had taken.
"I think she had a kind of a mixed reaction," Clark said. "On one hand, she was obviously relieved she wasn't going to have to put herself and her family through the pain of living that night.
"On the other hand," Clark said, "I think she was honestly disappointed that she wasn't able to take the stand and confront the defendant about what he did to her and her family."
Glenn E. Murray, an attorney representing the pro-choice community, said of Tuesday's proceedings:
"The tactic serves his agenda. This way, he totally avoids any testimony about Kopp the murderer, and can move toward sentencing and portray himself as Kopp the martyr. He'll never be cross-examined about his deliberate stalking and hideous murder. This is better for Kopp than a jury trial or a guilty plea."
Kopp, 48, who has drifted around the country the last 20 years protesting abortion, is known as "Atomic Dog" by the radical anti-abortion group the Army of God.
Jailed since his arrest in France in March 2001 and his extradition last year, he came into court Tuesday dressed as he has been for the last several months of hearings and proceedings.
Of his own free will
Wearing an oversized blue sport coat that dwarfed his frail frame, khaki pants, and shirt and tie, he smiled nervously at times at the spectators - which included Slepian's widow. He stood and told D'Amico he fully understood the rights he was waiving and was doing so of his own free will.
He repeated "yes your honor," to every question D'Amico asked him about waiving his rights.
D'Amico took steps to ensure that was the case. When he was told last week that Kopp was considering this move, D'Amico appointed attorney John R. Nuchereno as an independent counsel to advise Kopp outside of Barket's presence.
Nuchereno said he met with Kopp for more than six hours over the weekend and told him what rights he was giving up, including the right to call witnesses and cross-examine prosecution witnesses.
"He has been advised of the significance of what he is doing and each and every right he is waiving," Nuchereno said.
The attorney said he told Kopp he disagreed with his decision. So, too, did Kopp's co-counsel, John V. Elmore.
"He knows he is acting against the advice of two of his three attorneys," Nuchereno said. "He wants to proceed."
Elmore, who has been Kopp's local counsel, asked to be removed from the case.
"I strongly disagree with the direction in which (Kopp) wants to proceed," Elmore said outside the courtroom. Kopp earlier gave up another local attorney, Paul J. Cambria Jr., who wanted to use a more traditional defense.
D'Amico told Kopp in court Tuesday that he, too, thought he was making a mistake.
"My opinion, for whatever it's worth, is I'm not crazy about it either," D'Amico told Kopp. "You're probably better served by having a jury of 12 people.
"But it's not my decision," D'Amico said. "It's your choice."
D'Amico told both attorneys he would rule several days after receiving the stipulated evidence and hearing their summations Monday.
Kopp still faces charges in U.S. District Court that by causing Slepian's death, he obstructed access to an abortion clinic. The charge carries a possible life sentence.
Barket tried unsuccessfully to represent Kopp on that charge, but both a federal magistrate, and U.S. District Judge Richard J. Arcara, who will try Kopp, said Barket has a conflict of interest.
Barket also represents Loretta C. Marra, who along with her husband, Dennis J. Malvasi, is jailed on federal charges of helping Kopp stay a fugitive in Europe for 21/2 years following Slepian's shooting. Barket could not represent both Kopp's and Marra's interests, the judges ruled.
Pro-choice lawyer surprised
Although Barket withdrew the request, Clark's office said it would write letters to the judge hearing Marra's and Malvasi's case in Brooklyn, as well as Arcara, to let them know Kopp had agreed to a trial on stipulated evidence without a jury.
Murray, the pro-choice lawyer, found that bizarre.
"I'm surprised that even though he has never admitted his guilt, and can still appeal his conviction," Murray said, "he's been offered letters asking for favorable consideration for the federal judge in his case and for his confederates, Loretta Marra and Dennis Malvasi, in their cases."
William Clauss, the federal public defender representing Kopp in federal court, declined to comment when asked if Kopp intended to give up his right to a jury trial. Kathleen M. Mehltretter, the assistant U.S. attorney who will try Kopp and sat through Tuesday's proceedings in county court, also declined to comment.
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