by Wells, Jon
D’Amico had never taken a public stance on abortion. Judges seeking election in New York State cannot discuss, or campaign on, their position on abortion or other issues such as the death penalty. In New York State, cases involving the death penalty are assigned to specially trained judges whose names go into a rotation. But there is no such system in place when the trial involves other controversial issues such as abortion. D’Amico’s silence made him Doyle’s choice for the job.
“In the event I assign it to you,” Doyle asked him, “will you take it?”
“Not if you can find someone else who wants it,” D’Amico said. “If you can, go with them, it doesn’t matter to me. But if you need me, I’ll do it.”
***
Buffalo, N.Y. October 2002 In October, Jim Kopp shocked everyone involved in his case when he declared he wanted to replace Paul Cambria with Bruce Barket, Loretta Marra’s pro-life lawyer. Judge D’Amico considered the request. Kopp was taking a huge risk. In court, the judge warned him of the potential problems, including a possible conflict of interest for Barket to represent both parties. Kopp replied that he was aware of the issues and was not concerned. Joe Marusak stood and added that Marra could benefit from Kopp making incriminating statements about himself, which could in theory be encouraged by Barket. It angered Kopp to hear Marusak go on like this.
“I’m not comfortable with Mr. Marusak discussing strategy,” he said to the judge. On October 22, D’Amico allowed Kopp to switch lawyers. Speculation in the media was that Cambria wanted out anyway, that he did not want the trial to turn into a forum on abortion, as Kopp appeared to desire. And money was drying up for Kopp’s defense. Cambria told court that his firm received money from someone who said there were many people donating to the cause of his defense.
“The funds that were paid to our firm have long been exhausted,” Cambria said. “And in any event, the funds were not donated to Mr. Kopp personally. As a result there are no funds currently held by us for his benefit. Indeed, I arranged for Mr. Kopp’s state defense expenses to be paid by the county of Erie due to his indigent state.”
In Barket Kopp now had a lawyer ready to argue the case the way he wanted. “Whether people want to hear it or not, this case is all about abortion,” Barket told reporters. “I’m absolutely pro-life and abortion is an abomination and a scourge on society. It’s a sign of a twisted society that our government wants to put a man like Jim in prison while allowing more than a million babies each year to be killed by abortions.”
Marusak countered that he would focus on the facts proving the murder of Dr. Barnett Slepian by James Kopp was planned and deliberate. The sniper’s motivation was a moot point. Marusak had kept himself ready for whatever curves were thrown at him. But even he couldn’t anticipate the twists to come.
*** Erie County Holding Center Tuesday, November 12, 2002
Jim Kopp loved intrigue, misdirection, unpredictability; it informed his world view and the way he conducted himself, even among close friends. A movie buff, he loved classic whodunits like The Maltese Falcon. He loved The Usual Suspects, in which Kevin Spacey is the seemingly pathetic small-time crook who turns out to be a criminal mastermind hoodwinking police. In the final scene Spacey’s character, a supposedly pathetic man known as “the cripple,” is released from custody; seconds later, the star detective realizes he has let the real villain go, and Spacey has already turned the corner and disappeared. Fooled them all.
In prison Jim came to a decision. He was about to surprise them all again. Through Bruce Barket he arranged a meeting with two veteran reporters from the Buffalo News named Dan Herbeck and Lou Michel. He had never before spoken to journalists. He wanted to tell them something. Kopp, Barket and the reporters sat down in a room in the Erie County Holding Center. Jim Kopp calmly announced that, before he would take any questions, he wanted to make an official statement.
“To pick up a gun and aim it at another human being, and to fire, it’s not a human thing to do,” he said. “It’s not nice. It’s gory, it’s bloody. It overcomes every human instinct. The only thing that would be worse, to me, would be to do nothing, and to allow abortions to continue.”
Then he did the unthinkable. He confessed to shooting Dr. Barnett Slepian.
“I did it and I’m admitting it,” he said. He described a version of events that became his new defense, and sparked a whole new controversy. He claimed he had been shooting to wound. “I never, ever intended for Dr. Slepian to die. The truth is not that I regret shooting him. I regret that he died. 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.”
He laid it out. Planned the shooting for more than a year, scouted locations, planned escape routes. Scouted six Buffalo-area abortion providers. Slepian’s house was ideal because it backed onto a wooded area. He had been in position, ready to shoot, on two earlier occasions but was not able to lock down on the target.
He described that night. He was in the woods watching the house, waiting for Slepian to appear. He showed in the kitchen, put something in the microwave oven, left the room. He took aim at the spot where he anticipated the doctor’s left shoulder would be when he came back. Although he was an “expert shot” the shooting had gone wrong. He fired only once because he saw Slepian fall. It saddened Kopp to learn he had died.
The reporters asked more questions. Barket encouraged Kopp to answer most of them, but on occasion cautioned him not to say anything. He wouldn’t talk about whether anyone had assisted him in any way. Would not explain why he buried the rifle and other evidence in the woods. And why had he done it at all? Kopp answered that one.
“Why do you think I used force against Dr. Slepian when he was within ten hours of taking the lives of 25 babies? The question answers itself.” The misconception people have about him, he said, was that he is a “peaceful man who would not harm anybody.”
They asked him how he felt about the comparison between his actions and those of the sniper who was terrorizing the Washington, D.C., area. The question angered him.
“Any reasonable person could see a distinction between me and the D.C. sniper. Why was Dr. Slepian shot? The obvious answer is to save children. If you did the same thing to protect a baby that was one day old, it would never be considered a crime.”
And what would Kopp do if he were acquitted and returned to the street?
“I would do something.”
Herbeck’s and Michel’s story was splashed across the front page of the Buffalo News. The morning it ran, Joe Marusak was alone at home, listening to the early news on the radio. The lead story was that James Charles Kopp had confessed. Marusak couldn’t believe what he was hearing. He had an inkling that Kopp wanted to make some kind of statement before the trial began. But he didn’t know what Kopp might say, or who he would say it to. He was shocked that he’d give an interview to reporters at this stage, period—and confess to boot. It was bizarre. Never seen anything like it. The case had completely changed, but Joe Marusak stayed focused, his mind leaping ahead to the new approach he’d have to take. He had already prepared an argument in case the defense took the position that James Kopp had shot, but not meant to kill, Slepian.
The blue-gray eyes saw the screaming headline in the Buffalo News: “KOPP CONFESSES.” Well. To a Catholic, confession means an act of a penitent disclosing his sinfulness before a priest in the hope of absolution. He didn’t appreciate the misuse of the word. Confession? Not quite!
His friends and supporters were shocked by the turn of events. Why did Jim Kopp admit to shooting Slepian, and now? He had repeatedly denied that he was guilty. Hadn’t he? Perhaps not. When he was in jail in France he told friends he was “innocent” and that he “didn’t do it.” Did he mean innocent of shooting Slepian, or innocent of killing him? He frequently played with semantics, played with words and their meaning. What was it that he had said to a throng of journalists when he was led f
rom a French court to a waiting police van? “The question you should be asking is, ‘Who killed Dr. Slepian?’ That’s the only question you should be asking.” Who killed Dr. Slepian? Had he been telegraphing all along that, despite his denials, he had in fact shot the doctor, but had not meant to kill? Or that God had taken Bart Slepian’s life?
The big question was, “Why?” Why throw himself on his sword like that? Jim Kopp was many things, but unintelligent was not one of them. He knew he stood a shot at acquittal. So why confess? Kopp told the Buffalo News reporters it was because he was haunted by the living victims, Dr. Slepian’s wife, her sons, and also that he felt guilt over misleading his supporters all this time. He wanted to finally tell the truth—about what he did, and why he did it. That’s what he told the reporters, anyway. Ah, the media. Romanita.
Chapter 23 ~ Biblical Figures
Brooklyn, N.Y.
November 2002 A week after Jim Kopp’s carefully choreographed confession to the Buffalo News, Loretta Marra was escorted out of the Erie County Holding Center in Buffalo, and Dennis Malvasi taken from a federal facility. They were both transported to a prison in Brooklyn for trial. A new bail hearing was scheduled for the following week. Marra had high hopes that she might finally be released. She listened as Bruce Barket made his appeal to Judge Carol Amon for her release. She had been in jail for 19 months. Loretta teared up when Barket mentioned her two young sons.
The case had been assigned to an Eastern District prosecutor, but Western District prosecutor Kathleen Mehltretter appeared in court as well, at the request of the judge, to answer questions, given her background in the case.
“In your opinion,” Amon asked, “do Mr. Malvasi and Ms. Marra pose a flight risk?”
“I believe they do, Your Honor,” replied Mehltretter. Anger surged through Loretta Marra when she heard
Mehltretter speak. Loretta had been denied bail previously, wasn’t this latest denial expected? It was as though this time, she truly expected something different. Something had gone wrong. The judge agreed with Mehltretter. No bail. Marra snapped.
“You lying bitch,” she said.
***
Buffalo, N.Y.
Monday, March 3, 2003 People from all walks of life filed into the courtroom for jury selection in the trial of James Charles Kopp. The accused stood and smiled at the people who would decide his fate. In the wake of Kopp’s confession, District Attorney Frank Clark, Joe Marusak’s boss, said the strategy had not changed. It just meant there were fewer facts in dispute. They no longer had to prove Kopp pulled the trigger. They just needed to prove that he intended to kill in order to get a murder conviction.
Kopp was an admitted sniper, and that fact drew an even more radical stripe of supporter to attend the trial—those who felt that shooting Bart Slepian was justified. On the sidewalk outside the courthouse, four pro-life demonstrators handed out flyers. The flyers called for the jury to acquit “baby defender James Kopp.” One man spoke to reporters and said it was a case of justifiable homicide.
Nearly 200 potential jurors went through orientation and
Nearly 200 potential jurors went through orientation and page questionnaire asked whether close friends or relatives had ever belonged to any group that advocated a certain viewpoint on abortion, and whether they had read the Buffalo News story in which Kopp admitted shooting Slepian. Judge Michael D’Amico cautioned them to be honest about their opinions. “The issue of abortion may be raised during the course of this trial ... Whatever your view may be, it does not disqualify you from serving on this jury,” he told them.
Jim Kopp watched the jury selection proceed, the faces of strangers pass before him. What was it his dad used to say? “Juries don’t care what you know, but what you can prove.”
The next day, March 4, Kopp again turned the trial upside down. He decided to reject trial by jury, he wanted his fate decided by judge alone. And there would be no testimony, no crossexaminations. Instead it would be a “stipulated fact” trial. Counsel on both sides would still have an opportunity to present their arguments in court, but the essential facts of the case would not be at issue at trial. Instead the judge would be given a list of critical facts agreed upon on in advance by the defense and prosecution. Wasn’t Kopp’s best strategy calling all of the government’s evidence into question, debating the details in court, chipping away at the prosecution? Kopp had caught everyone by surprise once more. My God, thought D’Amico. Does Kopp have any idea what he’s doing? Joe Marusak was shocked as well. He had never seen such a maneuver at this stage of a murder trial. What was Kopp thinking? Jim Kopp, the lawyer’s son. Courtroom strategist. He had, years before, expressed his view on stipulated-fact trials. In the “Rescuer’s Handbook” he had written about them as an “underrated” strategy. “But don’t use a stipulated trial,” he had cautioned, “unless you are pretty sure they have you dead to rights.”
Judges have a responsibility to ensure that any accused person receives an effective defense, particularly in a case as serious as murder. D’Amico knew that Kopp’s best defense rested with a jury trial. So the judge told him, repeatedly, that he should go with a jury.
“Do not presume anything about me, Mr. Kopp,” he warned. “If you want my personal opinion, go with a jury. But it’s your call. You have an absolute right to waive a jury. I can’t stop you.” There were numerous reasons to stick with a jury trial, D’Amico said. There were no guarantees either way, but with a jury, if he could just convince one of the 12 jurors that he was shooting to wound, Kopp could get a hung jury. D’Amico even assigned an independent counsel to talk to Kopp about the decision. The appointed lawyer met with Kopp for six hours. He returned to D’Amico and said the accused was fully aware of his rights, but this is the way he wants to proceed, he was not budging. Bruce Barket, for his part, told Court TV that he was “comfortable” with Jim’s new strategy. “Reasonable people can differ,” he said. “Jim gets to make the call. I’m along for the ride.”
Why did Kopp waive a jury? Privately, D’Amico had his own theories. A stipulated-fact bench trial meant the case would be brief. The judge had already ruled that TV cameras would not be permitted in the courtroom. That meant Kopp would not have a soapbox to talk about abortion. So why bother with a drawn-out jury trial? Or maybe that wasn’t it, maybe Kopp decided that a long trial would mean the prosecution could trot out witness after witness, friends of his—maybe Loretta. He didn’t want them exposed that way. Or, thought the judge, it might be as simple as money saved by a short trial. Barket would incur expenses traveling back and forth to his
Kopp is led into Courtroom No. 1. home on Long Island. Whatever donations Kopp had received had dried up, especially since his confession. D’Amico had no choice but to grant Kopp’s wish. In all, 400 jurors had filled out the 16-page questionnaire, but none would hear the case.
*** Erie County Hall
Buffalo, N.Y.
Monday, March 17, 2003
James Charles Kopp entered Courtroom Number One handcuffed, wearing tan pants and navy blazer with a bulletproof vest underneath. He wore square wire-rimmed glasses, his rust-brown hair brushed to one side. Visually he remained a paradox, a man accused of cold-blooded murder who looked meek and even frail. One woman in the gallery thought he looked handsome, maybe even strikingly so, with his full lips. Another thought he looked like a geek at best, downright ugly at worst, with a “gaping fish mouth.” Seeing him in person for the first time left people with a vague sense of unease. There was just something about him.
Judge Michael D’Amico He wasn’t the kind of figure most people associated with the FBI’s Ten Most Wanted List. He was no Timothy McVeigh, with the square Marine jaw, brush cut, menacing stare. Handcuffs? They looked ridiculous on Kopp. This, wrote one reporter, is Atomic Dog? This is the sniper who evaded the FBI, Interpol, and the RCMP for 28 months?
When they weren’t on Kopp, all eyes in court were on Bart Slepian’s widow, Lynne, who sat quietly, surrounded by family
and friends, wearing a black suit, her blond hair pulled into a ponytail. Support from friends was so strong there seemed to be a force shield around her, one that kept even the most aggressive reporters from trying to talk to her. When Kopp entered the courtroom he avoided her stare. But he paused to nod and smile at pro-life radical Michael Bray in the crowd. Kopp seemed to have little chance of acquittal, given the admitted, damning facts, and no jury to massage. All the defense had to work with was Kopp’s intent.
Judge D’Amico took his seat.
“Your Honor,” began Joe Marusak, “the first matter this morning is People of the State of New York against James Charles Kopp, under indictment 98-2555-S01.”
D’Amico asked Kopp questions to ensure, for the record, that he still wanted to proceed the way he had requested—a stipulatedfact trial, and by judge alone—and that Kopp consented to the facts that Marusak was about to present. “And before I approve this stipulation and your desire to proceed in this fashion, Mr. Kopp,” said D’Amico, “let me just ask you a couple of basic questions. You are healthy today, physically and mentally, no problems, no drugs, alcohol or anything like that?”
“No, Your Honor.”
“You have a degree, a college degree?”
“Yes, sir.”
“In what?”
“Biology.”
“That’s a bachelor’s degree?”
“Master’s.”
“So you don’t have any difficulty understanding what we’re talking about?”
“Right.”
“And no one has made any representations to you on what the verdict will be?”
“I got to guess, Judge.”
“You can guess.”
“Sure. And other people have guessed in my presence.”
“But whatever guess you have in mind no one has represented to you that that’s what is in my mind?”
“That’s correct.”
Kopp answered in the affirmative to the questions. But there was a caveat. Kopp and Barket had made an addition to the agreed statement of facts the night before, which was agreed to by Marusak. Kopp was already casting an eye to his future trial on the federal charges.