A federal court jury determining the fate of James C. Kopp is not deciding whether Kopp fatally shot Dr. Barnett A. Slepian -- both he and prosecutors agree he did -- but whether his doing so makes him guilty of crimes that will keep him in prison until he dies.
The jury started deliberations Wednesday and almost immediately asked for testimony by Slepian's widow, Lynne, to be read back. Jurors were sent home when the court stenographer who took her testimony was not available. Deliberations resume this morning.
According to the prosecution, there is no question that by shooting Slepian, Kopp is guilty on both counts: He broke the law to stop Slepian from performing abortions, and he used a firearm, an SKS semiautomatic rifle, to do so.
"Do you want a country where James Kopp decides who gets shot and who doesn't?" Assistant U.S. Attorney Kathleen M. Mehltretter asked the jury.
"He made himself a lawmaker," Mehltretter said. "He made himself the accuser. He made himself the judge, the jury and the executioner."
Kopp said one of the counts he is charged with, interfering with reproductive services, makes no sense to him as a biologist.
"I know what reproduction is," Kopp said. "When a man and a woman unite, there is a third [person] created. A man and a woman have reproduced themselves."
"Is killing the child 'reproduction'?" he asked.
It makes no difference what Kopp thinks of the law, Mehltretter said in rebuttal.
"Reproductive services is defined in the statute," Mehltretter said. "We don't have to agree with it. . . . Reproductive services also includes ending a pregnancy."
"The defendant is able to talk himself out of everything," the prosecutor said. "Don't let him talk you out of what he did [and] what the evidence shows he did and intended to do."
The evidence and Kopp's own words, she said, paint him as someone who stood outside Slepian's East Amherst home for hours until Slepian appeared in a rear window. Then Kopp shot him in the back with a high-powered rifle and killed him.
Kopp apologized to Lynne Slepian during the trial and told jurors repeatedly that he never meant to kill the doctor.
Kopp read the jury part of the autopsy report that showed the bullet that hit Slepian in the upper shoulder and changed direction after striking a rib and Slepian's spine.
"A bullet that bounces off a spine is not an intent," Kopp said. "It is tragic; it is sad."
"What was my intention? To injure Dr. Slepian so he could still be alive; the [unborn] children would be alive at the end of the day."
Mehltretter said that it makes no difference what Kopp says now.
"It was a deliberate and willful act," Mehltretter said. "There is no buyer's regret, no do-overs. 'Sorry' doesn't make it better. The defendant has no acceptable excuses."
She also said Kopp did not have to intend to kill Slepian. His actions were so reckless, she said, that he caused his death.
U.S. District Judge Richard J. Arcara gave the case to the jury to deliberate Wednesday afternoon after both summations and his explanation of the law involved.
Kopp, 52, was living in Vermont at the time of the shooting, had spent much of the last two decades protesting abortion and picked up the nickname "Atomic Dog" from his peers.
He faces two charges in the federal court trial: violating the Freedom of Access to Clinic Entrances Act, by interfering with reproductive services, and using a firearm to commit a violent act.
Because of Slepian's death, the charge carries the death penalty, but prosecutors waived that after French authorities e United States intended to execute him. Kopp was arrested in France after a 2 1/2 -year run from the law.
During the trial, Kopp virtually conceded most of the evidence -- rarely asking questions -- and he has already been convicted of murder in Erie County Court. For that conviction, he is serving 25 years to life in prison.