by Jon Wells
* * *
Buffalo, N.Y.
Wednesday, June 5, 2002
The U.S. Department of Justice jet arrived from Paris and touched down at the Niagara Falls air force base. On board were several U.S. marshals, the Amherst chief of police, and James Charles Kopp. He returned facing two trials. The State of New York had charged him with murder in the second degree, reckless endangerment in the first degree, and criminal possession of a weapon in the third degree. The federal government charged him with using deadly force to interfere with the right to reproductive health services.
First he was taken to the federal courthouse in downtown Buffalo, escorted into the room by federal marshals and police. He was arraigned before magistrate Judge Hugh Scott on the federal charge. If found guilty, he faced a sentence of life in prison without parole. Paul Cambria filed a not-guilty plea on Kopp’s behalf. Jim Kopp wore wire-rimmed glasses, a rumpled dress shirt, green work pants and navy canvas slip-on shoes. He had a rolled-up Magnificat magazine, the Catholic periodical, in his back pocket.
Amherst Police Chief John Moslow, far left, and FBI officials address the media before James Kopp appears in court.
“Are you James Charles Kopp?” asked Scott.
“Yes, sir.”
“Do you understand your right at this time to remain silent?”
“Yes, sir.”
Kopp didn’t say anything else, but he had instantly made an
impression with the media. How could this man be the infamous sniper? His was not the fierce face that had glared from the FBI most wanted poster. Reporters described his thick glasses and boyish face. A slight, meek, wisp of a man with a loopy grin. The public had a new picture of James C. Kopp. Perhaps he wanted it that way. Few could see the wiry forearms, large hands, the blue-gray eyes that seemed to grow darker when he was angry, or the six-foot frame that never looked quite that tall because of his hunched gait. And no one could see the intensity that burned within him.
Judge Scott remanded Kopp into custody. As the marshals escorted him out of the court, he noticed a friend in the gallery, a pro-lifer. “Joe! Hi, Joe!” Kopp said, grinning, before being led into an elevator and down to where more armed marshals waited in vans and jeeps and sedans.
Paul Cambria addressed reporters. “He’s very upbeat—very much looking forward to the process.” Cambria added that the trial would not be about abortion.
A reporter asked why Kopp had fled in the first place if he was innocent.
“It wasn’t because he’s guilty. You’ll find that out as we begin to try the case. There is a very plausible and innocent explanation for his actions.”
The next day he was arraigned in state court and pleaded not guilty to the charge of second-degree murder, which carried a maximum sentence of 25 years to life. Cambria promised the media the trial would be a dogfight. One legal analyst said the resourceful Cambria would “have a field day” picking out weaknesses in the prosecution’s case, including why it took police five months to find the murder weapon, and challenge them to prove that Kopp had bought it. In effect, the defense lawyer would put the FBI and police themselves on trial. The analyst added that everyone was anxious to see Paul Cambria take on the top prosecutor in the Buffalo DA’s office.
* * *
“Life in prison would be difficult, certainly—it always is,” Joseph Marusak said, his blue eyes staring unblinkingly into those of the jurors. “But he’ll still be able to get up every day. He’ll be able to breathe every day. What about his victim?” It was a Thursday in October 1998. The 20-year-old man charged with murder watched the prosecutor work the jury, trying to convince them that the accused deserved to be strapped to a gurney and have potassium chloride pumped through his veins, stopping his heart—that he, Jonathan Parker, deserved to die. Parker was Joe Marusak’s first death penalty case. He had, weeks before, managed to get Parker convicted for murder. Now he was going for the ultimate sentence.
At that time, three years after Republican governor George Pataki had brought back capital punishment to New York State, only one other person sat on death row. Parker had shot decorated Buffalo police officer Charles (Skip) McDougald, father of four. A controversial case. The selection of an all-white jury for Parker—who was black—had drawn criticism. But then the victim had been black, too. Parker had been arrested a few times prior to the shooting on drug and weapon offenses. Before the jury Parker apologized to McDougald’s family. He was sorry, truly sorry, for the tragedy he had caused. But Marusak argued that Parker had forfeited his right to live when he aimed a loaded semiautomatic pistol at the police officer’s heart.
“If Officer McDougald had been able to steady his aim and kill the defendant, would that action have been justified?” Marusak asked. “If that action was justified, how can the death sentence not be?”
The presiding judge in the case was Michael L. D’Amico. He watched Marusak pour it on, taking the jurors back to the fatal night, putting them in the slain cop’s shoes, recounting the final hours of his life.
“He had no clue as he got out of his car that he had an invisible target on his chest. Then the explosion shreds your heart. You reach for the gun out of instinct, your lungs filling with blood and the life going out of you—can you grasp the brutality of this?”
As Marusak spoke, the cop’s widow fled the courtroom in tears. Marusak was Catholic, raised by devout parents, attended mass regularly. Through most of its history, the Roman Catholic Church had supported the death penalty. But by the end of the 20th century, Pope John Paul II opposed capital punishment as “cruel and unnecessary.” U.S. Supreme Court justice Antonin Scalia, a Catholic, supported the death penalty. If Marusak felt any personal conflict on the issue, he could not let it affect his work in court. He kept his views to himself. But he also felt that arguing in favor of the death penalty in a court of law did not make him a bad Catholic. He hadn’t requested the Parker case. It was assigned to him.
Marusak was 44 years old but looked much younger, had thick dark hair with flecks of gray, the pale blue eyes alert, skin unwrinkled, athletic build. He spoke with the distinctive Western New York accent, so when he said his name it sounded like Maroozyak.
He was in court on Saturday, October 24, 1998, as the jury returned to render its decision on the sentence for Parker. They deliberated 17 hours over three days. There was one woman on the jury who had refused to be swayed. Parker would live, serve life in prison with no parole. Joe Marusak lost. Marusak kicked himself over it. He should never have accepted that woman on the jury. During jury selection, she had opined that she supported the death penalty only in very rare circumstances. Marusak had thought he could prove to her that the murder of Skip McDougald was one of those times. He had been wrong.
As if by way of a rematch, faces from that courtroom would meet again. It was the evening before the verdict, on October 23, when another verdict had been rendered in the woods outside Bart Slepian’s home—when the sniper had condemned Slepian with a high-powered rifle. The judge in the Jonathan Parker case, Michael D’Amico, would oversee the case that spawned from that night. And Parker’s lawyer, John Elmore, would join the legal defense team for James Charles Kopp. His opposite number would again be Joe Marusak.
Prosecutor Joe Marusak
When Lynne Slepian heard that Marusak was appointed to prosecute Kopp, she spoke to Glenn Murray, Bart’s former lawyer and friend. “The prosecutor’s name is Joe Marusak,” she told him. “Is he good?”
Murray smiled to himself. How many times had Joe kicked his ass in court? Every time? Yes, every time. “Lynne, this guy works 20 hours a day. He is every defense lawyer’s nightmare. He’s the best there is.”
Chapter 22 ~ The Usual Suspects
Buffalo, N.Y.
Thursday, August 29, 2002
In order to establish the identity of Bart Slepian’s killer for the jury, Joe Marusak returned to witnesses who saw the suspicious jogger near Bart’s home in the days leading up to the murder four
years earlier. He needed them to ID Kopp in a police lineup. Five men filed into the room on the third floor of the police station. They were fillers, all of similar age, weight, height and skin tone to Kopp. A theatrical-makeup artist added a beard and mustache to each, to resemble his appearance in October 1998. A hairstylist added Kopp’s coloring, although two of the fillers were close enough that they didn’t need it. Kopp was brought in to a different room and, under the eye of Paul Cambria, also made to look as he had back then—now clean-shaven, he was given a fake beard.
In the viewing room, the witnesses were instructed to say nothing to each other. They sat in the first two rows in assigned seats and were handed identification sheets to write on. There would be two lineups. Each man would wear glasses for the first one, and take them off for the second. Cambria was told that he could place the defendant in any of the numbered spots he wished, but he declined the offer. The lineup entered the viewing room. None of the men were permitted to make any gestures or speak. Each man stepped forward separately, made four quarter turns, then returned to his spot. For the second lineup, each man walked a different route towards a designated spot five feet from the one-way glass through which the witnesses were watching.
Detective Daniel Rich from the Erie County DA’s office spoke to the witnesses. “If you recognize anybody on the stage that was involved in the incident for which you are viewing the lineup, please record the number that he has on his chest. If you don’t recognize anybody on the stage, leave it blank.”
One of the witnesses was Dolah Barrett. She held a master’s degree in sociology and special education. She had seen the plodding jogger back then. Never seen him before in the five years she walked that route. She looked at the men in the lineup and wrote down a number. Jim Kopp’s number. A high school social studies teacher named Daniel Lenard was another. He identified Kopp as well. So did Mary Jo Brummer. Landscaper Kenneth Dewey stared at the faces. One of them looked familiar, but he was not sure. Hadn’t the jogger seemed taller? He left his sheet blank.
Marusak obtained a court order for Kopp to provide blood and hair samples, as well as handwriting samples to see if it matched the writing found on the SKS rifle purchase application document retrieved from the pawnshop in Old Hickory, Tennessee. FBI forensic chemist Julie Kidd constructed DNA profiles from hair and skin traces found on the green baseball cap and binoculars left at the shooting scene, and on the toothbrush recovered from Jim Gannon’s attic. She compared the DNA from the evidence to that in Kopp’s sample. The profiles matched. The odds were at least 1 in 280 billion that the DNA recovered at the crime scene belonged to someone other than the accused.
Among other evidence Marusak gathered for presenting in court were eight exhibits in a file labeled “FBI photos from Canadian investigation.” He also had two dozen rolls of film documenting anti-abortion protests in the Philippines, where Kopp had been, and multiple rolls of film from the FBI’s search of a home on Buck Hollow Road in Vermont, where he had lived for a time and where the FBI had seized a Smith & Wesson handgun, two empty bullet clips and two boxes of cartridges.
Marusak and Cambria shared information, as they were required to do. And evidence started leaking to the media. Cambria spoke to reporters and confirmed the rumor that the prosecution had testimony from an unidentified woman—who was in fact Jennifer Rock. “We have been told by the prosecution that one of my client’s friends supposedly drove him to Mexico after the homicide,” Cambria said. “That’s all they’ve told us. We don’t even have the name of the witness who supposedly said this.”
Marusak felt confident. He imagined Kopp standing there in the police lineup, seeing the beards on the other guys, knowing the witnesses had to be picking him out. The DNA evidence, the handwriting, the knowledge that Jennifer Rock would testify against him: Kopp could see it coming, this avalanche of evidence. He’s got to be feeling the pressure now, thought Marusak, sensing this wave building against him.
As the summer wore on, Marusak worked the case every night, every weekend. It had to be that way, it was the way he approached cases, they became part of him. He needed to be at the top of his game. He forced himself to eat often to keep his energy level high. There was so much evidence against Kopp, but there were also the conspiracy theories. The defense would surely milk them, sow doubt in the minds of jurors. He had to bring them up, counterpunch. Marusak had no wife, or kids. He had never married. You throw yourself into cases like he did, you don’t meet many women. He did not necessarily embrace his fate on that score, but he accepted it. His usually rigorous exercise regimen went out the window. He added 16 pounds to his five-foot-eight frame, pushing him over the 140-pound mark, still trim by most standards, but not what he demanded of himself.
He met with Lynne Slepian several times. He was impressed by her will, her strength, as they went over evidence, photos, details. She always had a pot of coffee, food ready for him.
This widow and mother had a black hole in her life, and yet, on the outside, she wore a stolid mask as she tried to keep a sense of normality in her sons’ lives. What Lynne Slepian’s boys must have gone through—and continued to go through—having seen their father bleed to death on the kitchen floor. Joe Marusak’s father had died young, of a heart attack, in 1989. Joe had not been a kid like the Slepian boys. But he too had watched his father die in front of him, on the kitchen floor.
* * *
Buffalo, N.Y.
July 2002
A trial date for Loretta Marra and Dennis Malvasi was set for August, as the couple continued to be held in a Buffalo prison. If they were convicted of obstructing justice they would each face up to ten years in prison and fines of $250,000. They had already spent 15 months in jail. Marra’s lawyer, Bruce Barket, continued working to reach a plea bargain with the prosecution. He argued that she should be released because, he argued, she had helped persuade Kopp to give up his fight against extradition from France and return to the United States to stand trial. Federal prosecutor Kathleen Mehltretter argued that Marra should receive no such credit. But then the prosecutor had her own reasons for reaching a plea deal with Marra-Malvasi. She felt a full-blown trial for the couple would mean calling witnesses who might also be called during the Kopp federal trial—which might hurt the case against Kopp.
On August 13, federal judge Richard Arcara postponed Marra and Malvasi’s trial to September, giving lawyers from both sides time to work out a deal. The lawyers arrived at one: Marra and Malvasi would plead guilty to obstruction and receive a reduced sentence of 27 to 33 months. In addition, the couple would not be required to testify against Kopp. On August 21, Arcara flatly rejected the agreement. He thought the punishment suggested in the deal was far too light. Several months earlier, he had presided over Marra and Malvasi’s preliminary hearing. He had heard evidence of emails between Kopp and Marra, in which Kopp talked about whether he should “return to the field.” Arcara felt the emails reflected “conversations about returning to the field of shooting abortion providers.” He believed that Marra and Malvasi had committed serious crimes, including perhaps acting as accessories after the fact in the murder of Dr. Slepian. He declared that the couple’s case would go to trial, and set a date of September 24.
In September, Marra filed a motion to dismiss the charges against her. It was rejected by the prosecution. On September 23, the day before the Marra-Malvasi trial was to begin, Kathleen Mehltretter decided she would in fact support Marra’s request to dismiss the charges—including obstruction of justice, conspiring to obstruct justice, and aiding and abetting the flight of a fugitive— and instead bring a single lesser charge of conspiracy to harbor a fugitive. She asked for a new trial in the Eastern District of New York, in Brooklyn, at the conclusion of Kopp’s trial. Marra and Malvasi agreed to the proposal.
Arcara was not amused. The veteran judge was angry at what he called the prosecution’s “manipulative tactics” and “blatant judge shopping.” But he added that the law presumes the prosecutor i
s the best judge of whether a pending case should be terminated. He had little choice but to do as Mehltretter asked and dismiss the obstruction charges against Loretta Marra and Dennis Malvasi. They would return to Brooklyn to stand trial.
* * *
Buffalo, N.Y.
Summer 2002
When it came time to select a judge to hear Jim Kopp’s murder case, there were several in the Buffalo area expressing interest. But whoever presided over the trial was walking into a political minefield. The Western District administrative judge, Vincent E. Doyle Jr., had a decision to make. He turned to the judge who had made the least noise about the case.
He phoned Judge Michael L. D’Amico. “There are quite a few who have asked about it,” Doyle said. “Which is one of the reasons I don’t want to give it to them. Will you do it?”
D’Amico paused.
“Or let me put it this way,” Doyle said. “Do you have any issues with doing it?”
D’Amico knew what that meant. Doyle wanted to know if D’Amico had any issue with taking on a case where abortion was front and center. Doyle had already heard from Kopp’s lawyer, Paul Cambria. Cambria said he had no intention of making abortion the central issue, but was definitely worried that he might wind up before a judge who was inclined to crucify Kopp for political reasons. Doyle had asked both Cambria and prosecutor Joe Marusak to submit names of judges they thought would be best suited for the trial. D’Amico thought the exercise was asinine. But his name was on both lists.
