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By David Staba

In most murder cases, the defense offers one of two arguments -- either the defendant didn't do it, or did so to save his own life.

But with jury selection in the the intentional murder trial of James Charles Kopp set to start Monday, March 3, his lawyers are putting the finishing touches on a strategy that has nothing to do with innocence or self-defense.

Instead, Kopp's legal team of Long Island's Bruce Barket and Buffalo's John Elmore will argue that Dr. Barnett Slepian somehow had it coming when Kopp, by his own admission, staked out his suburban Amherst home and shot him from the cover of a clump of trees on a dark October night in 1998.

"Individuals have an obligation -- not only the right, but an obligation -- to protect innocent life and they can do that by force if they choose," Barket told the Niagara Falls Reporter last November, before Erie County Court Judge Michael D'Amico slapped a gag order on attorneys from both sides. "Jim prolonged the lives of children that were to be aborted the next day."

Never mind that the Supreme Court has consistently ruled, over the last 30 years, that a woman's right to control her reproductive future is guaranteed by the U.S. Constitution. Barket's argument holds that if you don't agree with a law, you can break another in protest.

Barket, whose main claim to fame prior to replacing noted Buffalo defense attorney Paul Cambria at the head of Kopp's legal defense team was his work on behalf of Amy Fisher, will also stress his client's claim that he meant only to wound Slepian.

"They have to prove that he intended to kill Dr. Slepian," Barket said. "That clearly wasn't his conscious objective. Motive is relevant to intent."

With the question of whether Kopp pulled the trigger or not already settled, Barket has made it clear the issue of abortion itself will be the focus of his case. Far less certain is how much of that case Justice D'Amico will allow Barket to make.

Erie County District Attorney Frank Clark expects some testimony on the subject to be allowed, but said he will fight to keep it from becoming the trial's focal point.

"We will still argue the rules of evidence aren't suspended because this guy thinks he has some license from God to do what he did," Clark told the Reporter a day after Kopp's confession was published. "The argument of self-defense, that I killed this abortion provider because I'm saving the lives of hundreds of John and Jane Does -- no. I'm sorry. That's not what the legislature contemplated in the justification status. We'll rely on the sound discretion of the trial judge to allow those things that are legally relevant."

While Kopp's confession scared away many who had previously supported him and believed him the victim of a mass conspiracy, it appealed tremendously to militant anti-abortion groups like the Army of God. That group rallied in Buffalo last month, where they were joined by Barket, and promised to return for the trial.

The organization's Web site offers hints at Kopp's defense, or at least his attempted defense. Amidst fire-and-brimstone biblical quotations that attempt to justify the cause of murdering doctors ("Who will rise up against the evildoers? Who will stand up for me against the workers of iniquity?" -- Psalm 94:16) are links to photos of aborted fetuses and a list of murdered doctors titled "Dead Abortionists in Hellfire."

To show they're not single-issue fanatics, the Army of God's site also includes sections on their Bible-driven hatred of homosexuals and Muslims ("The Homo News" and "The Allah News," respectively).

Whether D'Amico, known in local legal circles for running a no-nonsense courtroom and keeping tangential arguments to a minimum, allows a single post-abortion photograph into evidence may be another matter entirely.

Barket said the jury needs to hear testimony related to abortion.

"An individual's intent and motive is relevant in every proceeding," Barket said. "They've charged him with a specific intent crime."

Kopp's attorney doesn't worry about the ramifications if the jury not only hears the logic that the supposedly monstrous evil of abortion left his client with no choice but to shoot Slepian, but buys it.

"The precedent that's been set is, since 1973, 30 million-plus lives have been extinguished," Barket said when asked if an acquittal wouldn't turn licensed physicians into legal targets for religious zealots.

However D'Amico handles it, the case will be the most high-profile trial to take place in Western New York since the remarkably speedy prosecution of Leon Czolgosz for the assassination of President William McKinley more than a century ago.

Unless D'Amico allows the trial to become a particularly outlandish episode of "Law & Order," it's difficult to imagine it becoming a modern-day Scopes Monkey Trial, one where a fundamentalist interpretation of morality supersedes the rule of law.

It's a murder case, pure and simple. No matter what anyone else tries to make of it.

Niagara Falls Reporter www.niagarafallsreporter.com February 25 2003