“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.