Posted on 03/16/2003 9:54:21 AM PST by Marianne
James C. Kopp won't have anything to say Monday during his one-day trial in Erie County Court for the assassination of Dr. Barnett A. Slepian. No one will testify. There will be no witnesses.
It now appears likely he won't have anything to say in U.S. District Court, either. By shooting Slepian, he faces federal charges of obstructing access to an abortion clinic.
Legal sources also expect a nonjury trial in federal court - using evidence agreed to by the prosecution and defense - similar to Monday's trial before County Judge Michael L. D'Amico.
Or they expect some other resolution of the federal charges short of a traditional trial.
Kopp's decision to truncate his trial before D'Amico surprised many who expected Kopp would try to use his testimony as a forum on abortion.
It leaves some with a feeling of a thing left undone.
"You want to have your chance to confront Kopp and say, "Here's what you did, this is how you affected this family, this community,' " said Bernard A. Tolbert, who led the Buffalo FBI office during the investigation of Slepian's killing on Oct. 23, 1998, and told his widow of Kopp's March 2001 arrest in France.
"In my estimation, justice will be served if he's found guilty," said Tolbert, who now directs security for the National Basketball Association. "But there's a huge part of me that says, "This is not good.' "
Even though Kopp admitted to The Buffalo News in November that he shot Slepian to stop him from performing abortions - he said he never meant to kill him - many feel Kopp's failure to testify will leave the full story untold.
"I think we lose access to a lot of information that potentially could be helpful," said Vicki Saporta, executive director of the National Abortion Federation in Washington, D.C. Kopp's taking the stand to testify would have opened him up to cross examination by Deputy District Attorney Joseph J. Marusak, who has spent four years preparing to question Kopp.
Kopp could have been questioned about those who helped him, Saporta said, and those he turned to during his 21/2 years on the run in Europe.
"This is our great frustration with the way these things are prosecuted," said Katherine Spillar, who tracks anti-abortion extremists as executive vice president of the Feminist Majority Foundation in Washington, D.C.
"The only person prosecuted is the man who pulled the trigger, not the network we believe chooses the target, helps carry out the shootings and helps him escape," she said. "Until the network is hunted down, this will never stop. We never get beyond the theory of the lone gunman."
Loretta Marra and Dennis Malvasi, a Brooklyn couple active in the anti-abortion movement, are charged federally with helping Kopp, but pro-choice activists believe there were far more people involved.
Abortion opponents fear that a prolonged trial, with its day-to-day evidence about Slepian's shooting, might have sullied the pro-life movement, even though most do not support Kopp's actions.
"The judge will rule, the judge will sentence, and it will be done," said Stasia Zoladz Vogel, president of the Buffalo Regional Right to Life Committee. "People ought to stop grandstanding. This is a crime, it is a homicide, and no homicide against a person, born or unborn, is pretty. It's just not."
The Rev. Flip Benham, national director of Operation Rescue and Operation Save America, says even though he has dedicated his life to stopping abortions, it is morally wrong to shoot doctors who perform them.
"We're saying Dr. Barnett Slepian's life is sacred; it's not for anyone to take it, to act as judge, jury and executioner," said Benham. "That's why we hope this trial by judge will be over quickly."
The Rev. Michael Bray, pastor of Reformation Lutheran Church in Bowie, Md., and a Kopp supporter who has served a prison term for clinic bombings, said he has confidence in Kopp and his attorney, Bruce A. Barket, choosing this way to proceed.
"I look forward to a strong case being made," said Bray, who came here with the Army of God for a protest in January and visited Kopp in the Erie County Holding Center.
"I think the pressure will be on the judge," said Bray, who carried a sign, "Save A Baby, Call A Kopp," during the demonstration. "He will not face a more crucial decision in his life than this one."
District Attorney Frank J. Clark said he is already tired of the second-guessing of his decision to go along with Kopp's decision to limit the trial to a judge with stipulated evidence. He said he made the right decision.
"I owe it to the community to do everything I can to ensure he is properly brought before the bar of justice," Clark said.
"There's precious little this community doesn't already know about this case. This has probably been the most exposed case in this county in the last 25 years. My job, quite frankly, is to make sure justice is done in this case."
Compelling courtroom drama
Six months ago, the coming Kopp murder trial in Erie County Court looked as if it would be one of the most compelling courtroom dramas in decades.
Representing Kopp was Paul J. Cambria Jr., one of the fiercest advocates in Buffalo with a national reputation in the courtroom.
Marusak had prosecuted more than 50 homicides in his nearly 20 years with the district attorney's office, including the case of cop-killer Jonathan Parker.
D'Amico, the judge, is a common-sense jurist who is known to answer a windy legal argument by saying something like, "So what's the problem?"
D'Amico's courtroom style is similar to a good football referee who keeps things under control and doesn't draw attention.
The FBI, led by case agent Joel Mercer and assisted by the Amherst Police Department and New York State Police, had interviewed hundreds of witnesses, discovered the gun believed used in the shooting, and tied Kopp to the crime through DNA and other trace evidence.
But a split in the defense started developing last fall when Kopp told Cambria he wanted to bring Barket onto the team.
Barket, a Long Island lawyer who has represented pro-life defendants in the past, became known nationally when he got Amy Fisher released from prison early on charges she shot the wife of her lover, Joey Buttafuoco.
Fisher was released after Barket said her original Long Island attorney had an affair with Fisher that clouded his legal judgment.
Cambria left the defense team in October and said last week that Barket's pro-life views cloud his judgment.
"A defense lawyer should stay away from situations where he is so tied up with his own beliefs that it may affect his defense strategy for the client," Cambria said. "There are some cases that I will not take because I realize that my own feelings are so strong that they may cloud my judgment. A good lawyer has to realize where to draw the line in a situation like that."
Nontraditional defense
Barket has made it clear since he took over Kopp's defense that Kopp, 48, who has a master's degree in biology, is not a traditional criminal defendant.
Deny, deny, deny is the usual strategy of most defendants, Barket said, but Kopp wanted to be honest. He shot Slepian, he didn't mean to kill him, and he didn't think he was guilty of murder, Barket said.
Even though the judge and two of Kopp's three lawyers - including a special counsel appointed by D'Amico - said they disagreed with Kopp's decision to give up a jury trial, Barket said last week he wouldn't abandon Kopp.
"I'm not going to walk away from my client," Barket said.
Once Barket took over Kopp's defense, he agreed to let two Buffalo News reporters interview Kopp in November in the Erie County Holding Center.
"The truth is not that I regret shooting Dr. Slepian. I regret that he died," Kopp said during that interview. "I aimed at his shoulder. The bullet took a crazy ricochet, and that's what killed him. One of my goals was to keep Dr. Slepian alive, and I failed at that goal."
Kopp explained his admission by saying he could no longer keep silent. He said he felt bad that he had misled his supporters. He wanted them to know the truth about his action and why he took it.
Case changes
Suddenly the whole nature of the case against Kopp changed, and the second-guessing of Barket in the local legal community began.
"If it were me," defense lawyer Joseph J. Terranova said of Kopp's admitting he shot Slepian, "I would have dropped the H-bomb as part of the defense case."
Cambria said he would have kept his plans a carefully guarded secret "until the last possible minute," and believes Kopp's testimony at trial might have caught prosecutors off-guard.
"You don't make a decision like that until you have to," Cambria said. "You wait to see how the evidence is coming in, how the trial is shaping up for your client and what kind of jury you have. You certainly don't show all your cards before the trial."
Marusak's reaction was to go back to an Erie County grand jury and add another murder count in December.
Kopp was already charged with intentional murder. His statement to The News that he didn't intend to kill Slepian might, by itself without the FBI evidence, add up only to manslaughter.
So Marusak, for insurance, added a charge of second-degree murder caused by a depraved indifference to human life. That is, by firing a high-powered assault rifle 30 yards from Slepian's kitchen - so close that Kopp said he could read the remaining time on the microwave before Slepian would come back into view - Kopp showed a depraved indifference to human life.
With this new charge, it didn't matter whether Kopp meant to kill Slepian or not.
Confession absolves FBI
Kopp's confession also cleared up some potentially tricky evidence issues for Marusak. Although FBI agents linked Kopp to the gun and to the Tennessee pawnshop where it was purchased, the shop owner didn't clearly identify Kopp as the buyer. And a Pennsylvania woman had said Kopp was working on a home improvement project at the time Slepian was killed, hundreds of miles away.
But Kopp told The News he bought the SKS Russian-made assault rifle from the pawnshop, using a phony Virginia driver's license. And he confirmed FBI evidence that he had become an expert marksman, having shot the weapon numerous times at shooting ranges.
The Kopp confession also removed a cloud from the FBI, after pro-life groups and Kopp supporters had accused agents of fabricating evidence.
They said that Kopp's eyesight was too bad for him to hit anything he might have aimed at, that his bad back made it ludicrous to think he had jogged through Slepian's neighborhood before the shooting, that Kopp was too much a man of peace even to fire a rifle, and never would take someone's life.
And while members of the Army of God, the radical anti-abortion group that calls Kopp "Atomic Dog," probably would have come to Buffalo anyway, it's certain that Cambria would not have joined them in the January protest outside the Holding Center as Barket did.
Bray, pictured with Barket in the following day's News, wrote of that protest in a commentary to his supporters: "We were able to visit Mr. Kopp for an hour after completing a 90-minute, dozen-man demonstration in front of the jail in support of Mr. Kopp where we were opposed by sundry homosexuals, anarchists, fans of bestiality, lapsed Christians, Democrats and basic miscreants," Bray wrote. "Our several signs all read, "Save A Baby - Call A Kopp,' to the great indignation and unholy ire of these anti-antis."
Many of the Army of God demonstrators, including Bray, have served prison time for violence at abortion clinics.
Evolving decision
Negotiations that led to Kopp's surprise decision last week to give up his jury trial and be tried by D'Amico on stipulated facts began with both state and federal prosecutors, District Attorney Clark said.
"When this was placed on the table, I spoke to Mike Battle," Clark said of the U.S. attorney. "It kind of evolved, state and federal, and then the negotiations were just with us."
Battle said it's too early to tell exactly what shape Kopp's prosecution will take in federal court. He said William Clauss, the public defender appointed to represent Kopp in federal court, is waiting for Kopp's state charges to be disposed of first.
"I think he is taking it one step at a time," Battle said. "He wants to get everything done on the state charges first."
Clauss declined to comment.
But both Battle and Clark said it was highly unlikely that Kopp would forgo a trial in county court on the state charges and then decide to stand trial in federal court.
"If you're asking me whether, with all that has happened, if that appears to be the logical assumption," Clark said, "I'd say it is."
Seeking extradition
Canadian authorities last week told the Hamilton Spectator they intend to seek Kopp's extradition to stand trial in Ancaster, Ont., for the shooting of Dr. Hugh Short, another abortion provider, but legal sources here saw the chances of that happening as slim.
Canada never helped the United States in the extradition of Kopp from France, these sources said, so it was never part of the original agreement.
And if Kopp is convicted and sentenced to life in prison on both state and federal charges, they ask, why would the United States agree to let him stand trial in Canada on attempted murder charges?
Monday's proceedings before D'Amico are not expected to last more than the day. Still undecided is whether the 30 pages of stipulated facts will be read into the record or just submitted.
Marusak and Barket will make summations of the evidence to D'Amico, who said he would rule within three days.
The charges carry a minimum of 15 to 25 years and a maximum of life. The federal charges also carry a maximum life sentence.
That is one very crazy, very nasty, sick individual.
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