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Round Two for James Kopp Anti-abortion activist goes on trial again this week for the sniper death of an Amherst abortion provider

Any lingering doubt that James Kopp shot and killed Dr. Barnett A. Slepian ended when Kopp himself said he did it.

He said he was the man who stood in the woods behind Slepian's house on Oct. 23, 1998, and shot the doctor from 100 feet away with a Russian-made assault rifle.

Kopp was convicted of second-degree murder in Erie County Court based on that confession to The Buffalo News and on his agreeing to the evidence against him - although he said he only meant to wound Slepian to keep him from performing abortions.

But the justice system is not done with Kopp, even though he is serving a sentence of 25 years to life and has little chance of ever being free.

Kopp, 52, an anti-abortion radical known as "Atomic Dog" by his peers, stands trial again this week, this time in U.S. District Court.

Kopp faces two charges - that by killing Slepian he used force against an abortion provider and interfered with legal reproductive services, and that he used a firearm to do so. There is no chance that Kopp's state murder conviction will be overturned. The state's highest court, the Court of Appeals, rejected his final appeal.

So why the need for a federal trial?

"The fact that the defendant has been convicted in New York State Court is irrelevant to this proceeding," Assistant U.S. Attorney Kathleen M. Mehltretter said in papers filed with U.S. District Judge Richard J. Arcara. "The United States has the obligation and the right to enforce its criminal laws."

Perhaps a greater reason is the potential sentence. The federal charges carry a mandatory life term.

If he is convicted, Kopp would serve his time in the federal system, which has no parole. Slepian's wife, Lynn, and the couple's four sons would not have to relive his death at each state parole hearing. Mrs. Slepian is expected to be the trial's first witness.

The federal trial also means the government, for the first time, has to prove that Kopp killed Slepian.

Kopp's Erie County Court trial, before Judge Michael L. D'Amico, was a one-of-a-kind murder trial arranged by his former attorney, a one-day, stipulated evidence trial with no jury.

Kopp already had said in a November 2002 story in The News that he killed Slepian. His attorney, Bruce A. Barket, then entered into the trial agreement with the Erie County district attorney's office, agreeing with prosecutors on the evidence against Kopp.

There were no witnesses, no cross-examinations, no courtroom fights over exhibits or crime scene photos.

D'Amico listened to the evidence contained in the stipulation, read aloud in court, and convicted Kopp the next day.

Kopp was only allowed to read a long statement giving his views on abortion and stating that he meant to wound Slepian so he could no longer perform abortions.

Kopp also is suspected of shooting three other abortion doctors in Canada - he is charged in the shooting of Dr. Hugh Short near Hamilton - and a near miss of a doctor near Rochester.

>Typewritten motions

Things will be different in federal court.

Mehltretter has led this case since she won Kopp's June 5, 2002, extradition from France, where he was captured after his nearly three-year run from the law. She has a full slate of witnesses to call and will be assisted during the trial by litigator Martin J. Littlefield. All the evidence will not be stipulated.

There will be a jury.

And Kopp will represent himself. He dismissed his government-provided attorney, John Humann, an assistant federal public defender, because Humann had planned a traditional defense contesting the charges.

Arcara agreed to let Kopp represent himself but appointed Humann as stand-by counsel.

Kopp, using an old typewriter in the Niagara County jail to type his motions, has failed to win almost every legal argument.

He tried to have the charges dismissed, arguing he never interfered with the Main Street clinic where Slepian performed abortions because he had never been there.

He also tried to have Arcara overturn Roe v. Wade, the 1973 U.S. Supreme Court ruling allowing abortions. He said that because Congress later passed a law - after the Lacey Peterson case - calling for separate murder charges if someone killed a pregnant woman and her fetus died, that abortion was therefore illegal.

Kopp's lack of legal training is evident in the motions he has filed. But he is not daunted. Why should the prosecution be allowed to offer pictures from Slepian's autopsy, he asked Arcara, if he cannot present pictures of aborted fetuses?

"If the prosecution can show bloody pictures," he wrote, "I request same."

"If the prosecution can bring witnesses who work at abortion mills, I request same, and also, to bring witnesses who work at crisis pregnancy and suicide prevent centers."

"If they can talk about injuries inflicted upon Dr. Slepian," he added, "I request same for injuries inflicted upon mothers and children by Dr. Slepian, bless his heart."

>Reporter subpoenaed

Prosecutors say Kopp turns the law on its head.

Abortion is legal, they argue. Murdering a doctor who performs abortions is not.

They have won a series of motions, getting the court to agree that Kopp cannot use a justification defense - that what he did was right to prevent abortion.

Arcara also ruled that abortion is not at issue in the trial, that photographs of fetuses will not be allowed, and that courtroom marshals will screen all spectators to ensure they are not wearing buttons or carrying signs or placards into the courtroom.

But again in this trial, Kopp's confession to The News, and his subsequent statement in Erie County Court, will be the centerpiece of the case against him.

Kopp had earlier withdrawn Humann's motion to suppress the use of both statements in federal court. But once the government won the right to use only those parts of the confessions that pointed to Kopp's guilt, not his reasons for doing what he did, Kopp tried to have the statements suppressed. Arcara ruled against him.

Prosecutors have subpoenaed one of The News story's authors, reporter Dan Herbeck. They want Herbeck to testify about what Kopp told Herbeck and fellow reporter Lou Michel when they interviewed him, with Kopp's attorney Barket present, in Kopp's cell at the Erie County Holding Center.

>Comparing confessions

Prosecutors say that, although they have extensive evidence tying Kopp to the crime, Herbeck's testimony is necessary because there were no eyewitnesses to the shooting.

"The statements are direct evidence of the identity of the shooter as well as his motive and planning," prosecutors said of their attempt to have Herbeck testify.

But Joseph M. Finnerty, representing The News, filed a motion to quash the subpoena. He argued that Herbeck's testimony would only be hearsay, that it would only be what Kopp told him during the interview.

A better source would be Kopp himself, Finnerty argued, and the statement Kopp made in Erie County Court, admitting that he shot Slepian. Past court rulings, he said, hold that the government needs to exhaust other sources before calling reporters as witnesses.

"The specter of a journalist being called to testify about a news report - and in this case, as the prosecution's witness in chief - is highly likely to make sources reluctant to speak with the reporter," Finnerty said.

But Mehltretter, in response, filed a chart comparing Kopp's statement in Erie County Court and Kopp's confession to The News. She said Kopp was far more detailed about how he shot Slepian and why he did it in his account to The News.

Arcara, from the bench Thursday, indicated he would order Herbeck to testify and directed prosecutors and Finnerty to draft an order narrowing the testimony to specific areas of Kopp's statement.



>Accused again

After conviction at the state level James Kopp, above, is being tried again in the 1998 killing of Dr. Barnett A. Slepian, an abortion provider

Venue: Erie County Court, one-day, non-jury trial before Judge Michael L. D'Amico Date: March 17, 2003

Charge: Second degree murder, convicted.

Evidence: Kopp's confession to The Buffalo News, stipulated evidence agreed to by defense and prosecutors.

Sentence: 25 years to life.

Venue: U.S. District Court, jury trial before Judge Richard J. Arcara

Date: Jan. 9, 2007

Charge: Use of force (homicide) to injure provider of reproductive health services (known as the FACE act), the use of a firearm to commit an act of violence.

Evidence: Kopp's confession, sentencing statement in Erie County Court, extensive forensic evidence, including murder weapon and other buried items behind Slepian's Amherst home.

Sentence: If convicted, life in prison.

Why a second trial?: To eliminate any possibility Kopp will ever be freed.

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