by Jon Wells
“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.”
Bruce Barket, Kopp’s lawyer—and Loretta Marra’s as well.
“
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?”
Protesters proclaim support for Kopp outside court.
Chapter 24 ~ Grace and Ammunition
Joe Marusak was not accustomed to handling stipulated-fact trials, with no witnesses to cross-examine. This was his chance to perform. “There is a factual theme in this case and it is this,” he began. “This defendant, James Charles Kopp, twisted the meaning of the sign of the cross so he could justify to himself his own deadly use of the sign of the crosshairs.”
A peaceful man? Devout Catholic? Just a cover to stalk and kill. “If anything, the Catholic Church stands for peace. The two greatest commandments according to Jesus Christ: love God with all your heart, soul and mind, and love your neighbor as yourself. He loved Dr. Slepian. Another phrase from Christ: ‘Judge ye not, lest ye be judged.’ Kopp took the role of police, prosecutor, grand jury, judge, trial jury and executioner all in one. Took it on himself.” As for intent, “the natural consequences of his act were, a very bloody, gory death, a bullet that bore a hole literally right through him, I mean sliced him in half practically where all of the major blood vessels, capillaries to the lungs, the aorta, the heart, I mean everything vital about us in our blood circulation system is built in our upper body. And that’s where the defendant aimed. And that’s where he fired. And that’s how Dr. Slepian died… You don’t need to be a forensic pathologist to understand that. You know where the heart is. Blood vessels. Lungs. This defendant surely did, a master’s biology graduate.”
The meek, mild-mannered facade was Kopp’s way of evading detection. He manipulated and deceived and lied to the relatively young, like Jennifer Rock, and the old, like James Gannon. “Do you think they knew they were helping someone who murdered?”
Marusak quoted from the confession Kopp had made to the Buffalo News reporters. “The defendant said, ‘I made every effort possible to make sure Dr. Slepian would not die. It’s the easiest thing in the world to kill somebody with a rifle. It’s very difficult to injure them if that’s your goal. Any idiot can see that it wasn’t meant to be fatal.’ Any idiot? Have you ever heard such brazen, unadulterated arrogance? Is it just because he’s got a 3.87 out of 4.0 and we are just not at the level of his intellectual prowess? Is that why the rest of us are idiots? Is there some sophistication going on in Jersey City that we just don’t know about, us backward hicks from Buffalo?”
Marusak was on a roll. Kopp was a zealot. Religious terrorist. Self-serving. Arrogant. “Say grace and pass the ammunition.” Kopp was frustrated that the law of the land permitted abortions. Dedicated his whole life to stopping it. Lived a celibate life. “And the frustration is chewing him up inside, he can’t get rid of abortion. In our democratic republic,
he can’t get rid of it.”
Marusak shifted the scene back into the woods behind Bart Slepian’s house, pointing to a photo, Exhibit 12, of the darkened backyard the night of the shooting, and the shattered window with the blind half-closed. It’s almost eerie looking out of that darkness. The man is at home, his back and his side are turned to the outside, and he thinks he’s in the comfort and security of his own home, with his wife and children. And the high-powered bullet rips out of that darkness, puts the darkness into the lives of the Slepian family forever.”
The window shade may have been pulled halfway, said Marusak, but finding Kopp not guilty would be like pulling the shade down the rest of the way, and failing to “see the defendant’s implausible, self-serving admissions for what they are. I know you won’t do that, Judge. I know you will look at all the evidence with the calmness, with the fairness, but with the critical analysis, that every trier of fact needs to do. And I submit to you, if you do that, you will find him guilty as charged, intentional murder in the second degree. Thank you.”
“All right,” said D’Amico. “I anticipate a decision by tomorrow afternoon, if you don’t have a problem with that, say, between 2 p.m. and 3 p.m. Make plans accordingly. “Any questions, gentlemen?”
“No, Your Honor,” said Marusak.
“No, Judge, thank you,” said Barket.
“See you tomorrow.”
That night, D’Amico mulled over the facts. It was not going to take him much time to make his decision. But there had been a defense presented and he had to take it seriously—that Kopp, like others in the pro-life movement, was not the murdering kind. Kopp’s confession that he shot Slepian was big, of course, but not definitive in the case. There have been people who have confessed to crimes they didn’t commit. D’Amico didn’t weigh the confession in a vacuum. Indeed, he felt the prosecution didn’t need it to convict Kopp. It’s just one piece of evidence, and the pool of evidence was deep. Barket hadn’t mounted a defense like Paul Cambria would have, had not tried to make hay with the delay in police finding the rifle. But D’Amico wouldn’t have found that very persuasive anyway, he thought. What, the police planted the gun? What’s more plausible, he reflected, that they simply couldn’t find it during the winter initially, or that the police planted it? What makes sense? Are you kidding me? Does anyone really believe that the police decided seven months after the murder to bury a weapon that turns out to be the one that fired the shot?
