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 is 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.
D’Amico was 56 years old, from the Buffalo area, married with two kids. He had a casual courtroom manner but he did not suffer fools gladly. He had a modest office with dark wooden interior, deep maroon leather chairs, American flag behind his desk. Through the connecting door was courtroom Number One, where the assassin of President William McKinley had been convicted in 1901. Historians said that trial “involved themes that would resonate far into the brand-new century: a dangerously unstable individual on the fringe of society… the obligation of the bar to defend the indefensible, and a media circus surrounding the public trial.”
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.