A federal judge wants to hear from James C. Kopp's former attorneys to determine if Kopp's confession that he killed Dr. Barnett A. Slepian can be used against him in his upcoming U.S. District Court trial.
Judge Richard J. Arcara on Friday set a May 9 hearing to learn the circumstances leading to Kopp's unusual confession in The Buffalo News in November 2002.
That confession, which helped convict Kopp of murder charges in his subsequent Erie County Court trial, should be suppressed as well as the comments Kopp made when he was sentenced, said Kopp's new attorney, John Humann.
Humann, a federal public defender, said attorney Bruce A. Barket of Long Island, Kopp's lawyer in the state homicide case, induced Kopp's confession to aid Barket's other client, Loretta Marra. Marra and her husband, Dennis Malvasi, were charged with aiding Kopp's run from authorities.
Humann said Barket's representing both Kopp and Marra was an unwaiveable conflict of interest and, because of it, Kopp's confession can't be used.
Paul J. Cambria Jr., who represented Kopp before he switched attorneys and hired Barket, said he looks forward to testifying.
"I'm glad there's a hearing," Cambria said. "There's no doubt in my mind that Barket had an unwaiveable conflict. I felt that Kopp had been manipulated and am prepared to say so."
Barket declined to comment.
"If I'm subpoenaed," he said, "I'll testify."
Arcara said he wants to hear testimony from defense lawyers and prosecutors in both the state and federal cases about the circumstances of Kopp's confession.
Kopp told two News reporters he only meant to wound Slepian in November 1998 when he shot him with a high-powered rifle from the woods behind Slepian's Amherst. Kopp said he wanted to prevent Slepian from performing more abortions.
Slepian's widow, Lynne, was at the hearing Friday.
Humann said federal prosecutors were in on the deal, citing e-mails and correspondence between them and Barket that promised Marra a lighter sentence if Kopp confessed.
Acting U.S. Attorney Kathleen M. Mehltretter flatly denied the charges. She said there were discussions, but no deal. And she said Kopp knowingly waived the conflict and acted against advice of lawyers.
Kopp is serving a 25-year-to-life sentence on the state charges. He faces another life term if convicted on federal charges on blocking access to an abortion clinic.
Arcara wanted to know if Kopp agreed with Humann, who argued that Kopp's confession and later statements in Erie County Court violated his constitutional rights because of Barket's conflict.
Does your client agree with this suppression motion or want it withdrawn? Arcara asked Humann.
Humann replied that he was unsure, but that he was doing his job as a lawyer in presenting the best defense possible for Kopp. If Kopp didn't agree with trying to suppress the statement, perhaps Kopp should represent himself with oversight by an appointed attorney, he said.
"Have you talked to Mr. Kopp?" Arcara asked.
"We don't always talk all the time," Humann replied.
After Arcara gave them both 10 minutes to talk it over one more time, Humann said Kopp agreed to go forward and challenge his confession.
Arcara set the hearing for May 9, and said he wanted testimony from Barket and Cambria and his law partner Barry N. Covert. He also said Mehltretter, the U.S. attorney, should testify, as should Joseph J. Marusak, an assistant district attorney, who convicted Kopp.
Barket arranged Kopp's interview with The Buffalo News in the Erie County Holding Center and a later telephone interview with a New York City television station.
And Barket also agreed to a rare stipulated evidence trial before Judge Michael D'Amico, who decided Kopp's guilt based on evidence that Kopp and the district attorney's office agreed on.
Barket's representing both Kopp and Marra is also raised in an appeal of state murder charges filed by the Legal Aid Bureau of Buffalo. Attorney David C. Schopp wants the Appellate Division to reverse Kopp's conviction because of the conflict.