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 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.
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.
The addition read: “Mr. Kopp specifically reserves the right to challenge in any way he chooses, including attacking the veracity of the witnesses, the same facts if any other prosecutor’s office seeks to introduce this stipulation or its contents in any other criminal or civil proceeding.”
Specifically, Kopp and Barket were casting doubts on Kopp’s admission to the Buffalo News reporters: “The People do not stipulate to the truthfulness of the defendant’s statements referred to in Exhibit No. 39. It is only stipulated that the defendant made the statements contained in the [Buffalo News] article.”
“But,” D’Amico said to Barket, “you are not disputing the recited testimony contained in this stipulation of facts, that it is truthful and accurate?”
“For this proceeding,” said Barket.
“Of course.”
“I mean—”
“You are not acknowledging that it is. You are simply not disputing?”
“Right, Your Honor,” Barket said. “I just want to make one thing clear. It is not his intention in any way to make any kind of admission at this point in time that would be admissible at any future proceedings, specifically with respect to the matter in Federal Court. He reserves the right to, later on, challenge the accuracy, veracity, truthfulness of witnesses today we are agreeing for this proceeding the court would consider.”
What were Barket and Kopp getting at? That the facts they were willing to agree to at this trial—facts that could send Jim Kopp up the river for the rest of his life—were not necessarily the truth? If they were not the truth, why was Kopp agreeing to them?
“Very well,” said D’Amico. “I think it’s as clear as can be made on the record here where we are and where we are going. So are we ready to go?”
“People are ready to proceed,” said Marusak. “The People and defendant stipulate that the defendant shot Dr. Slepian with a rifle on October 23, 1998, at or near 187 Roxbury Park in the Town of Amherst, County of Erie, State of New York, and that Dr. Slepian died from the resulting gunshot injuries.” Marusak launched into a point-by-point recitation of the facts of the case. He named witnesses by name who “would” testify—meaning, if a conventional trial had been held, they would testify under oath to the facts he was describing.
Marusak wanted to illustrate that Kopp had not only pulled the trigger, but that he wanted to kill Bart Slepian, get away with it, and was indifferent to the harm his action brought to Slepian’s family. He used overhead projections to show where Bart, Lynne, and their sons had been at the moment the bullet came through the window. “Judge, as Mrs. Slepian stood at the nearby kitchen island talking to her boys, she heard a ‘popping noise.’ She and her two sons were within approximately ten feet of Dr. Slepian when the bullet struck him.”
Marusak described the police response to the shooting. Some of the details contradicted Kopp’s version of what happened. Marusak said a witness would have been called who had been 14 years old at the time of the murder. Her name was Jessica Mason. She had been jogging with her mother just after 10 p.m. They heard police sirens, got in their car and went to see what was happening. They parked in a driveway on Aspenwood Drive and could see Bart Slepian’s house. Jessica noticed a man crouched behind bushes two houses down from Slepian’s. He wore a dark, hooded sweatshirt. She saw him run from behind the bushes to a small, dark car idling in the driveway of the house and get into the passenger side. The car then sped away. It was the first suggestion that Kopp did not act alone, that he had someone driving a getaway car.
“We’ll never know who the driver was,” said Marusak.
The court would have heard from Patricia Osborne, who sold Kopp the rifle in Tennessee. The court would have heard that Kopp practiced at a rifle range. Other witnesses would have included FBI agents, Lynne Slepian, Jennifer Rock, Kopp’s sister, Anne Rodgers. Amherst police would have reconstructed the shooting scene, explained how he carefully marked trees so he could locate the hiding place for his rifle in the dark. The prosecutor took the court along on the short ride taken by the military-style, full-metal-jacketed, 7.32 x 39 millimeter bullet fired by the Russian-made SKS rifle.
“At the close range of this shooting, the bullet went straight through the body without any significant deflection. This is a military bullet designed to punch holes in material as well as in people.”
Marusak outlined the autopsy findings. “The bullet actually severed and obliterated approximately two inches of Dr. Slepian’s spinal cord, backbone. The cause of death was a gunshot wound to the back.”
He touched upon one potentially weak piece of evidence. An FBI firearms expert had test fired a bullet from Kopp’s gun, recorded the rifling marks in the barrel, and compared them to the bullet that killed Slepian. They did not match exactly. This, said Marusak, quoting the FBI expert, was because “it is not uncommon for the rifle’s barrel to change with each shot so as to preclude the finding of a reliable connection.” That point was controversial among ballistics experts. After hundreds of shots, a barrel’s rifling marks might start to change. But from one shot to the next? Questionable. Barket and Kopp could, in theory, jump on that discrepancy, couldn’t they?
“I will, Judge, at this time offer that if you consider it necessary as the trier of fact, to view the rifle and a bullet,” said Marusak.
“I have seen them before, Mr. Marusak. That’s not necessary,” D’Amico answered.
Marusak consumed nearly the entire day with a meticulous, detailed presentation. He could not editorialize, color the statement with his own opinion. He would have a chance for that in his closing remarks. The methodical account of the facts was designed to prove to D’Amico that James Kopp had accomplished everything he had planned to do.
D’Amico was impressed. The judge looked at Bruce Barket. “It’s your understanding that’s the complete stipulation?”
“Yes, Judge,” said Barket.
“Yours as well, Mr. Kopp?”
“Yes, Your Honor.”
The judge looked at Barket.
“Anything from the defense?”
“No evidence, Judge, besides the stipulation.”
That was it. No evidence. Barket could defend Kopp in his closing argument, but would offer no evidence, no testimony, to take the sting out of anything Marusak said. “OK,” said D’Amico. “All right, Mr. Barket.” He had to convince the judge that Kopp’s goal was wounding Dr. Slepian. But if that was Barket’s intended focus, his argument strayed. He explained why Kopp took up arms—he was defending the shooting itself. “Jim was not motivated by hate, politics, malice or vengeance. He was motivated out of the love he held and still holds for the children scheduled to be aborted the next day… The court should render a verdict of not guilty because Jim Kopp was justified in his view in using force, even deadly force, to save the lives of the unborn children that were about to be aborted.”
“Deadly force?” “Justified?” It did not sound like an argument that Kopp intended to wound. Barket continued, arguing that Kopp’s good intentions were reflected in his decision to confess. He could well have continued denying he had shot Slepian, gone before a jury and quite possibly been acquitted. “I’m thinking of Jim in Biblical figures,” Barket said, “who in times of crisis ran and denied, even the Lord, Peter. Jim did that when he was confronted with what he had done… [but later] he admitted the truth.”
He tried to make the case that there was nothing in Kopp’s history to suggest he would ever want to kill anybody: “This is not a situation where there are four or five other shootings of abortion providers that resulted in their deaths and Jim can be tied to those shootings.”
Four or five other shootings ? Kopp was prime suspect in four other doctor shootings, three in Canada, had been charged by Hamilton police in the sniper attack on Dr. Hugh Short. Everyone in the courtroom knew about the other attacks. But these shootings were not part of the evidence, were not facts agreed to by both prosecution and defense in the stipulation. If the trial was by jury, the jurors would have been prevented from knowing about that background. They would know only what they heard in court. But a judge trial is different. And in this case, D’Amico was familiar with all of the context—knew what was presented to a grand jury to obtain the indictment against Kopp. He knew all about the trail of the sniper.
What was Barket doing? He sounded like he was making the connection to suggest the earlier wounding of physicians had been intentional, and the killing of Slepian a fluke: Jim Kopp had meant to wound Slepian, just like all the others, but this time, failed. But if that was his strategy, Barket did not expand on it, did not openly play that card. Perhaps he felt he didn’t need to—D’Amico knew the details, perhaps he would take what happened in the Canadian attacks into account on his own. But if that was the hope of the defense, it was misplaced. D’Amico blocked the other shootings from his mind, or tried to, because that evidence was not in the stipulation, it was off the table.
Barket continued. The margin between life and death is so slight, he argued. Consider the SKS rifle. How accurate was it? Jim was a good shot, but sliding it in and out of the holster in the ground, perhaps it affected the firearm. Even a hairbreadth misalignment could shift the bullet off target by inches, cost Dr. Slepian his life.
It was Barket’s most effective point yet. There had been questions about the rifle’s accuracy after FBI agents test fired it and disassembled it. And then there was the path of the bullet. The autopsy report suggested the bullet had taken an odd turn inside Slepian’s body. The round had entered the victim at “an extraordinarily odd angle,” Barket argued. The bullet entered the back of his left shoulder; had it gone straight through and exited cleanly out the other side, perhaps the doctor would have lived. But instead it had ricocheted, striking a lung, his spinal cord and several ribs. This had been the conclusion of the autopsy. But Marusak had an expert in gunshot wounds undertake a study of the case. The expert said that highpowered metal-jacketed bullets do not bounce around when they strike a target, they bore through. So which report to believe? Barket argued that the autopsy report was the most reliable, not the study done “by somebody paid years later to rebut” it.
“The ricochet,” he said, “in all likelihood is another factor that contributed to the unintended death of Dr. Slepian.”
Barket made a point of disputing Marusak’s claim that Kopp had been seen by an eyewitness getting into a getaway car—driven by someone else—near the Slepian home. That evidence had nothing to do with Kopp’s guilt or innocence. Was Barket trying to undermine the notion that a friend of Jim’s had helped him?
He started to conclude. D’Amico should find the courage to find Kopp not guilty, he said. This case was an historic opportunity. “Now, frankly, Judge, I don’t envy you at this point in time. By waiving a jury Jim and I have lifted a heavy burden and placed it on your shoulders. The question will become whether or not the law will be fairly applied to James Charles Kopp, even if the majority of the people don’t like the result dictated by law… Did he intend to kill Dr. Slepian? Absolutely not.”
Barket invoked the names of John Fisher, Thomas More, and Richard of Wales, “all three public figures, a bishop, a judge and a politician. They were confronted with the most divisive issue of their time, the supremacy clause of Henry VIII, who insisted on everyone signing. Richard took the oath and received Wales as his reward. More and Fisher refused and were beheaded… As we stand here now we must admire those two men who withstood even the pain of death and the demands of the majority in order to do what their conscience dictated. Richard received Wales as his reward for his whole life. Fisher and More received their reward all through eternity.”
D’Amico was not impressed. Barket was not arguing points of law, he reflected. Was he suggesting that Kopp should be acquitted in order for the judge to save his own soul? That the judge’s conscience should scream for acquitting Kopp?
“If you convict Jim Kopp there is no doubt that you will be hailed as a hero publicly for a time. I would respectfully suggest to you, judge, if you acquit him, as the law dictates, you will be a hero in the eyes of the truth for eternity.”
“Thank you, Mr. Barket,” said D’Amico. “Mr. Marusak?”