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.”