A non-apology from James Kopp, murderer of Dr. Barnett Slepian:
An anti-abortion extremist defending himself against charges of killing a doctor apologized to the man’s widow and declined to cross-examine her Tuesday after she described how her husband fell against her after he was shot in their kitchen.
The apology came on the first day of James Kopp’s trial on federal charges that he violated the Freedom of Access to Clinic Entrances act by killing Dr. Barnett Slepian, who provided abortions.
He is already serving 25 years to life on a state conviction of second-degree murder, but a federal conviction would carry a maximum sentence of life without parole.
“Mrs. Slepian, I just wanted to say I’m sorry. I respect you and your family,” Kopp, 52, said quietly.
Lynne Slepian, who had just recounted the Oct. 23, 1998, shooting for the jury, looked at Kopp but did not react.
“I respect your family so much I shot your husband in front of you and your four kids on the day of their Grandpa’s funeral.”
Somehow, that’s not much of a comfort, I’m sure.
Incidentally, his conviction in state court was for second-degree murder. If I remember my criminal-law bar review right, first-degree murder in New York is (or was, at the time) only charged when the victim was a police officer or or similar. Second-degree murder requires premeditation. But Kopp begs to differ:
Earlier Tuesday, Kopp used his opening statement to tell jurors that Slepian’s death was “a full-bore, 100 percent tragedy” but was not murder because it was not malicious or premeditated.
Kopp has acknowledged planning the shooting for a year and then firing a high-powered military rifle with telescopic sights from the woods behind the Slepian home, but he has said he meant only to wound the doctor to prevent him from performing abortions.
“Shoot them in the head, blow up a car, riddle their body with bullets like they do in the movies. That’s how you kill someone” with premeditation, Kopp said.
He urged jurors to look for evidence of premeditation or malice toward Slepian. “If you don’t see it, that’s me proving my case,” he said.
Whereas PLANNING to kill someone for a YEAR is just a happy accident.
Oh, he’ll be convicted. I’m just wondering why he’s got no attorney. If he’s ineligible for a federal public defender for some reason, aren’t there anti-abortion groups willing to fund his defense?
(Via)
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I’m sure he’s defending himself because–like all those who feel that their personal judgement trumps all other personal or public moral codes–he believes that he’s the best choice for the job, or any other job.
Luckily, as in all such cases, he’s certainly wrong.
Exactly.
I’d be surprised if it wasn’t his choice to defend himself.
I have to confess being really intrigued by how, precisely, he defines “premeditation” and “malice.”
Me? I’d say “I planned to X for a year” is premeditation.
And in cases where X is, say, “shoot a man with a high-powered rifle to render him seriously injured enough to prevent him from continuing to work because I disagree with what he does”, I’d say that’s malice.
I’m crazy like that.
I thought felony murder was also covered under second degree murder in New York. That’s his case? “I didn’t mean to kill him, just wound him.” Seriously, even if that is true*, he’s still guilty of felony murder.
He dismissed his court-appointed attorney in order to represent himself. I imagine a lot of non-appointed attorneys wouldn’t want the case even if he would have them, because he’s confessed to what is, at a minimum, felony murder, no? Maybe that’s why he dismissed his attorney in the first place. The attorney was advising him to plead guilty and not get sentenced to solitary confinement. He could have just spent his term in a medium-security federal prison. If he’s found guilty, it’s solitary for him.
*Besides, he had to have known that there was a good chance that, oh, you know, shooting someone had a high probability of resulting in death. So I don’t buy it.
Okay, well, he ought to know that shooting someone with a rifle had a good chance to kill someone, but… uh… this guy has given all kinds of indication that he’s, you know, either batshit insane or dumb as a load of bricks.
Maybe he thought God would guide his bullet or something? I don’t know.
Regardless, I don’t think it matters if he realized that the bullet stood a good chance of killing someone- isn’t it usually a “reasonable person” test for these kinds of things? This a-hole is, I would think, pretty out of touch with what a reasonable person should know.
God. I feel so badly for that doctor’s family. No way I could have kept quiet when this tool “apologized” and claimed to respect my family. I’d have lost it, for sure.
IIRC, felony murder is murder committed during the commission of an unrelated felony, such as kidnapping or robbery.
Why would there be two trials for the same crime?
And if the federal charge can lead to life wothout parole, why not have that trial first, and only have the state trial if he was acquitted in the federal one?
Seem like a waste of time and money, and I’d hate to make the widow go through all that twice.
It’s not the same crime. He was tried by the state for murder. He’s now being charged with a federal crime, violation of the Freedom of Access to Clinic Act by killing Dr. Slepian. They overlap to some extent, but they’re entirely separate crimes and separate jurisdictions.
Plus, it makes sense to try him for this crime after the murder conviction, since one of the elements they have to prove is that Kopp killed Slepian (and they probably have to prove, as well, that his intent was to stop Slepian from doing his job, which he cheerfully admits). If you have a conviction in state court, you can use all that evidence and testimony in the federal trial.
In any event, the federal action is usually stayed while the state trial is going on so they can’t try them at the same time.
Ah, OK. Thanks. I still think most attorneys would look at his defense as a non-starter and say “Take the deal. You’re already serving 25-to-life on the murder charge, so why risk solitary for the rest of your life? Besides, chance of not being convicted? Nearly non-existent.” But, really, I don’t know why he dismissed his attorney. Only that he did.
I’m still trying to wrap my mind around the idea that killing someone in the course of committing a robbery is legally worse than killing them while in the course of assaulting them with a deadly weapon. That, however, is irrelevant to the case and his defense.
Was 25 years the maximum penalty for the second degree murder conviction?
And could he be eligible for parole on that charge?
READ THE FUCKING POST.
It undoubtedly was his choice to defend himself, not only because of egomania, but because this way he gets to directly confront all the witnesses against him.
I did.
Where does it mention if life without parole was a sentencing option for the state conviction, or if he could receive parole for it?
I did a brief search and couldn’t find the answers.
As this site seems lousy with lawyers, I thought someone might know.
The part where it says the sentence for the state charge is 25 to life.
I’m really getting tired of you. I’m not your research department, and if you want legal advice, you have to cough up the same $350 an hour my firm charges for my time.
I’m not of a mind to let any of your posts through moderation anymore.
Just a question (and pardon my paranoia): Would he have been targetted and killed if his name was Dr. Smith rather than Dr. Slepian?
The American Taliban may very well be like the Taliban. One thing that escaped under the radar of the American newsmedia but was obvious to anyone who knew people from Afganistan (and is necessary to realize in order to understand why, e.g., the Northern Alliance opposed the Taliban even if some members of that alliance are as “Islamo-fascist” as the Taliban … a lesson that Bush & CO seem not to have realized necessarily) is that the Taliban were not necessarily “Islamo-fascist” thugs but often ethno-centric thugs who used sexist interpretations of Islam to persecute people from differing sub-tribes than the dominate groups in the Taliban, etc.
So was Slepian killed just for being an abortion provider or because he, shall we say, didn’t accept Jesus as his personal Lord and Savior?
Sorry. I understood that he got 25 to life, but I didn’t know that life without parole was not an option for the state conviction.
I still don’t know if he’s eligible for parole, though (not that you have to answer that).
If he’s not, it seems like overkill to me to try him again if he’s only gonna get out when he’s 77. Now he gets to feed his ego by defending himself, and the poor widow must endure being questioned by the nutjob who murdered her husband. The poor woman.
DAS, in the case of Kopp, he’s suspected in either 4 or 5 other shootings of abortion providers. At least some of the others weren’t Jewish.
In the mind of a Christian crazy, I very much doubt that being born again would save an abortion provider from being targeted. And on top of that, born-again attitudes towards Jews are relatively positive (compared to their attitudes towards other non-christian groups.)–Pat Robertson is quoted as saying that only Jews and Christians are fit to hold public office.
I can think of few things more traumatic than being freaking cross-examined by the man who murdered your husband in cold blood right before your eyes, and right in front of your four small children. Particularly when that person is utterly unrepentant about widowing you and leaving your kids fatherless.
Lynne Slepian has serious ovaries, not only for answering Kopp’s questions but also for not screaming at him. If it were me, I’d probably be vaulting out of the witness box and trying to strangle the bastard.
Oh, and I am the furthest thing from a lawyer that can be imagined, and I had absolutely no trouble understanding the post. The legal stuff re: parole and so forth seems perfectly clear to me.
P.S. Zuzu, email me!!!! I know about a pet friendly (dogs too) rental building in the city you’re planning to move to. That is rare like unto the holy grail!!!!
Esteemed author says:
“Oh, he’ll be convicted. I’m just wondering why he’s got no attorney. If he’s ineligible for a federal public defender for some reason, aren’t there anti-abortion groups willing to fund his defense?”
He’s a murderous wingnut – implies – irrationality.
He represents himself in a murder trial – implies – irrationality.
He’s a Christian fundie – implies – irrationality.
Really now. How much further do I need to go here?
Shankar Gupta says:
“Pat Robinson is quoted as saying that only Jews and Christians are fit to hold public office.”
Just wait until the fundies take over the government. We’ll see how long it is before jews are added to the roster of undesirables…
Are you arguing for an insanity defense? Because the ship sailed on that one long ago. Plus, the requirements are very specific, and rarely met.
Cool. Is he eligible for parole on the 25 to life state sentence?
Do your own research.
Ok, I finally found it (thanx for nothin’).
He’d be in his 70’s before he’d be eligible for parole.
Amen. That’s one of the reasons why I wonder about the necessity of the second trial.
I assume that there is a political aspect to it as well.
Yes, RM. He is. Now can we get back to talking about Dr. Slepian?
What “25-to-life” means is that he must remain incarcerated for a minimum of 25 years, after which he will be eligible to have parole hearings. At those hearings, which happen on a periodic schedule, it’ll be determined whether or not to let him out, but there is no obligation to let him out. In fact, they could keep him for the rest of his life, by turning him down for parole at every hearing.
This is different from a defined sentence, like “25-to-50″ for example, in which one would be eligible for parole hearings after 25 years, and the state would be obligated to free the person after 50 years if they hadn’t been paroled before then.
Short answer: on the state sentence he’ll be eligible for parole hearings after 25 years; that’s the definition of “25-to-life”.
Really, I don’t know why the concern trolling about Lynne Slepian. For all any of us know, she would rather see him put away for life without possibility of parole and would prefer testifying again to a potential future parole. We don’t know, so let’s not pretend that this is about her. It’s about what YOU think. So you think there shouldn’t be another trial and the most likely reason is politics. It is possible to state that without pretending you know what’s best for Lynne Slepian.
…Shooting a guy isn’t malicious?
I’ve never hears “she’s got serious ovaries” before, but I think I love it.
Actually, Roy, that’s in the article!
“Shoot them in the head, blow up a car, riddle their body with bullets like they do in the movies. That’s how you kill someone” with premeditation, Kopp said.
As I said on Feministing, it’s the best evidence I’ve ever seen that anti-abortion nutjobs have no relationship with reality. Or at least watched ENTIRELY too many bad action movies as children.
He didn’t cross-examine her, actually.
An anti-abortion extremist defending himself against charges of killing a doctor apologized to the man’s widow and declined to cross-examine her Tuesday after she described how her husband fell against her after he was shot in their kitchen.
I think it’s traumatic enough to have to sit in the same room as him, personally, but in the interest of the truth, as you can see, she wasn’t cross-examined.
I’m not going to argue that he wasn’t unrepetent. The “apology” and not cross-examining Mrs. Slepian are both calculated to generate sympathy, in my opinion. Give him a little more media attention.
zuzu, I don’t want to ask for free legal advice, but is it possible that this guy could get out before the minimum 25 years based on, say, good behaviour? Or is it completely set in stone?
It’s actually not “worse,” just a different set of elements to prove. The killing could be entirely accidental but it would still be considered murder because it was during the commission of a felony. If the killing were separated from the circumstances, the killing itself might be negligent homicide or manslaughter.
The different degrees of murder correspond to different combinations of malice, premeditation, intent, etc. I’m not a criminal lawyer, so I don’t know all the distinctions anymore.
It’s possible, which is one reason they’re going for the federal charges as well. Once he gets out of Attica or wherever he’s being held, the feds will get him.
And again, the federal charge is a different charge; it’s essentially an anti-terrorism statute. He’s being tried for using terror — killing an abortion doctor — to intimidate people seeking access to abortion services.
My other post is stuck in moderation, but does anyone know how the children of attacked abortion providers react to something like this?
I mean, look at these kids. Their dad DIED for this cause. Does it then become important to them because it was so important to their dad, or do they develop a hatred towards it because it took their father? Or is there more animosity towards a group that would kill someone’s parent to “save the children” because somehow, they didn’t count because of who their parent was?
I’m sure different children react differently, but I would be extemely interested in finding out how something so horrible affected them and their worldview.
…Shooting a guy isn’t malicious? – Reb
Well, they have, IIRC, used RICO to go after these anti-abortion terrorist groups (which makes me wonder why we need the Patriot Act when we already have RICO, which has already been shown to be successful in going after terrorists) — so these people aren’t too different from mobsters then?
I can imagine the remake of The Godfather now:
“Sorry Dr. S. This ain’t personal. It’s business. Business is business”
Ok, I can’t let this go… it took you six minutes to moderate and respond to me. I wasn’t even done my second post!
zuzu is amazing. I tip my hat to you.
Thanks again, zuzu. I think grasp what you’re saying.
It reminds me of an ongoing joke my bf and I have about our different mindsets. He’s a lawyer (although also not criminal), and I’m a financial analyst. He is totally math-phobic and loves the (for lack of a better word) nuances in the law. I, on the other hand, get terribly excited about the fact that there is only ever one right answer to a math question. One night we had a friend of his and her gf over for dinner. His friend is also an accountant, while her gf is a judge. We got on this topic, and it completely lined up with the finance/accounting people waxing rhapsodic about the “great universal truth” in the one right answer to a math question, and the two lawyers talking about how wonderful it was to be able to ponder a question from different POVs.
Shorter me: I’d make a crappy lawyer.
Oh, I know that he thinks that those are examples of premeditation, but… I mean… I guess I wonder what exactly he thinks makes those things different from what he did. Or, more accurately, why those things count as premeditation. I mean, to me, premeditation is… and I know this is ker-azy… about planning out your action prior to performing it. I wasn’t under the impression that premeditation had anything to do with the number of bullets you use, or the use of explosives.
Hmmmm.
But, yeah. Talk about divorced from reality.
I have very little doubt that he’s defending himself because he needs to be the sole hero of his own story. Not only has he watched a bunch of bad action movies, but I’d bet he’s also watched a bunch of bad legal dramas in which it comes down to getting off by a) a legal loophole and/or b) a barnburner of a closing argument.
The sad thing, to me, is that anyone with such an insular worldview probably wouldn’t be fazed by life in solitary, at least for a good while, although eventually he’d probably get around to reproducing the Sistine Chapel on the ceiling of his cell using his own shit for pigment.
I was implying that he was just plain stupid, Roy. I guess when you spend a year planning to shoot someone, and four other people before that, you don’t spend a lot of time with your dictionary looking up words like “premeditation” and “malice.”
And if you spend all the time you’re not planning to shoot people watching bad action movies packed with the things he talked about, sitting in one place for hours, playing sniper probably just seems so… MUNDANE.
Lesley, I hope I didn’t come off as concern trolling. You’re right that we don’t know her state of mind. Maybe she was eager to testify so as to get closure and to show Kopp she wasn’t afraid of him. But regardless of her feelings, I’m sure it would’ve been a stressful experience to recount your husband’s last moments in front of the guy who killed him (hat tip to PrairieLily for alerting me to my initial error).
I think it’s possible to admire her decision to testify, applaud her having serious ovaries, and at the same time empathise about the stress the experience probably caused. I don’t think anybody here thinks she’s a frail damsel who must be wrapped in cotton wool, but it was still probably an unpleasant experience for her. Many crime victims find it very stressful to testify, especially in front of their attacker(s), particularly if there’s a mistrial or something and they have to do it all over again.
And I think we can applaud such people for being strong, especially because the odds are that the testimony takes an emotional toll (not saying anything about Lynne Slepian specifically here, just extrapolating that she may have the most common reaction).
Raincitygirl, I’m sorry I wasn’t clear. My comment wasn’t directed at you, because you weren’t suggesting that somehow the second trial was a bad idea in part because the government wasn’t concerned with your perception of the best interests of Lynne Slepian.
I wasn’t trying to suggest that any expression of sympathy for Lynne Slepian is concern trolling. It isn’t. Just that couching an opposition to the second trial in terms of its being bad for Lynne Slepian is, unless the commenter is Lynne Slepian or knows her views about it.
That’s why out here in California, we hear from Charlie Manson every few years as he once again goes in front of the parole board and once again gets turned down and goes back to prison. Same with Sirhan Sirhan.
I know it’s hard on the families, who have to keep testifying over and over again in fear that some idiot will vote to let him go. It’s not a totally rational fear, I think — I doubt that either Manson or Sirhan will ever leave prison alive — but I understand it.
If he’s not, it seems like overkill to me to try him again if he’s only gonna get out when he’s 77.
They’re not “trying him again”, they’re trying him for an entirely separate crime. Consider what would happen if the first conviction were overturned or vacated. Oopsie, he’s not guilty of anything else! Guess he gets to walk around unmolested while the state figures out if it’s going to re-try him.
It’s bullshit that he “only meant to injure him.” If he only wanted to injure him, he could’ve used a small gun. He chose a “high-powered military rifle with telescopic sights.” The bullet went straight through Dr. Slepian and ricocheted around the room, for god’s sake!
He deserves to die in prison. Pieces of shit like him are the ultimate example of why “pro-life” is not about life; it’s about CONTROL.
Bill Baird (Baird v. Eisenstat, the case that extended the right to privacy for birth control to unmarried people) sent his wife and kids to upstate NY to protect them from the death threats, and they turned on him and became wingnuts. When I spoke to him more than a decade ago, the anger and bitterness just spilled out.
Does anyone know about George Tiller? He’s their #1 target, but I don’t know if he has a family or even a pet.
That’s kind of misleading, and I blame the reporting by the media. The gun, from what I’ve read, is an SKS. Technically it’s a military rifle… I think it last saw popular military usage in, say, the 1960s and 70s. It’s no more a “military” weapon these days than the Colt Single Action Army is. It’s a very popular civilian rifle, primarily used for hunting, and can be found all over the place. You can pick one up in the United States for less than $200. Kopp may have had no clue that the rifle was originally a military weapon. And scopes are pretty common hunting rifles.
I’d not heard that the bullet ricocheted around the room- I thought, in fact, that the problem was that the bullet didn’t go right through- it bounced around inside his body, causing intense internal injuries. Otherwise, he probably would have survived- he was shot in the shoulder, which isn’t usually fatal, I think.
Sorry- I just think it’s important to roast the guy for what he actually did, not for the choice of rifle. I don’t care if he meant to kill the doctor- a reasonable person would know that, regardless of the rifle being used, when you shoot someone there’s a chance they’re going to die. Honestly, “I only wanted to injure him so badly that he couldn’t work anymore” isn’t really much better than “I wanted to kill him.” And, ultimately, I don’t care if that’s what he wanted to do, because it’s not what he actually did, you know?
He’s his own attorney cause he’s looking for martyrdom, and he will get it. He’s far from being the only sicko out there.
In my humble experience, people who end up in open court without a lawyer are, plain and simple, kooks.
If I’m remembering correctly, I read that he wanted to be his own attorney so he could use his anti-abortion views as an explaination for shooting the doctor. And the judge shut him down flat, told him he couldn’t do that.
Yeah, anyone whose ever had even the slightest experience with guns knows — you just might kill someone if you shoot them. Cause, hey, ya know, guns are supposed to kill things. Ostensibly things you intend to have for dinner, but hey, people die too.
zuzu Says:
Actually, my understanding is that one could stand trial for murder both at the state and federal level. It’s the typical standard legalese mischief they pull that somehow does an end-run around the prohibition against double jeopardy. That’s always helpful when, you know, the jury does not come back with the right verdict the first time.
He’s probably not getting charged with murder at the federal level because of an agreement (no death penalty) when we extradited him from France.
One act, one bullet, one dead body, but two crimes? I suppose we could prosecute him with RICO too if we wanted.
mythago Says:
Shit, maybe we should rethink the “innocent until proven guilty” and “right to face one’s accuser” stuff while we’re at it. And hey, I know, we can turn the check-and-balance Grand Jury thingy into a gigantic fishing expedition for the prosecution too!
Roy Says:
Well, if it’s an SKS, that a carbine. In other words, it’s a low power rifle that’s in between the power of a full power rifle and a pistol. But this is the MSM we’re talking about. You can’t expect them to get anything firearms-related correct.
Zan Says:
It’s his freaking trial! shouldn’t he be able to argue anything he wants at his own damn trial? Give him enough rope, he’ll hang himself.
That’s always helpful when, you know, the jury does not come back with the right verdict the first time.
Yeah, same damn thing them agitatin’ lawyers did with the whole violation of civil rights thing in the sixties. Damn shysters!
One act, one bullet, one dead body, but two crimes?
For real, I mean it makes complete sense that a person charged with murder can’t be charged with another crime, no matter the actions of said person involved, because nuance is just legal doublespeak.
and /snark
Your mission, should you choose to accept it, is to go read the friggin’ Federal Access to Clinic Entrances Act.
Go away now. Shoo, shoo.
Have you any passing familiarity with the Federal Rules of Evidence?
I don’t know if you know anything about law at all, but I just finished one measly semester of law school, and it’s entirely possible for one act to violate multiple different laws. That’s how you get those with multiple counts where people are convicted of some counts and not others.
Timothy McVeigh, for instance, was given eleven seperate charges for one single explosion. They weren’t all murder, either. He was charged with conspiring to use a weapon of mass destruction, using a weapon of mass destruction, and causing an explosion, as well as multiple murders. The only difference here is that it’s state and federal law, so there’s two trials.
If you think this is a miscarriage of justice, you’ve got a lot of work ahead of you. This is isn’t some special rule they invented for people who shoot abortion doctors, or other defendants with political causes. It’s standard practice throught the US (and I believe much of the world), and I don’t know of any support for the “one act, one crime” amendment.
Oh, if I’m not mistaken, Standard Mischief has held himself out before as a lawyer. Though it’s hard to believe from this.
zuzu Says:
I am not, not have I ever held myself out to be a lawyer, either in real life or on the tubes of internet. It doesn’t stop me from having opinions about what constitutes double jeopardy.
I think I found it. I don’t, however, see where you can get life w/o parole by violating it. Perhaps I’m Googling up a draft version or something.
ako Says:
Yea, but they didn’t try McVeigh on one charge, see if it stuck, then decide if they were going to pursue another charge. Would you think it OK if, after this trial was over, they tried to make RICO stick against James Kopp? Then, after that trial, maybe we could declare him an “enemy combatant” and hold him forever without any access to a lawyer. I mean, I suppose some one could make the case that he’s home-grown terror or something.
McVeigh also never faced Oklahoma state charges, just the federal ones.
Yea, I pretty much already said it was the standard mischief. It does not mean I agree with it.
zuzu Says:
Probably not, and I’m missing your point. Do you have any passing familiarity with the rights of jurors to judge the law, and how the law is being applied in the particular case? I’m of the opinion that if he’s judged compliant to stand trial, then he has every right to make some kind of fruit-loop argument that killin’ people was part of his religious freedom. Are you afraid he’d get off by making that argument to the jury or something?
Luckily, double jeopardy is not a matter of simple opinion, but of legal doctrine.
But that isn’t even relevant to this case, since double jeopardy isn’t much of an issue here. Here’s the deal: Kopp was tried in state court for murder, because the murder was in that state’s jurisdiction. He is now being tried in federal court because he violated the FACE act, which is a federal law concerning health clinic violence. Therefore, violations of it are tried in federal court, and violations of the FACE act are separate offenses from simple murder. Here’s a good summary of the FACE act (pdf) if you’re looking for more info. You will see from that summary, and from the full text of the act (which is included in that link), that the maximum penalty for a FACE offense resulting in death is life imprisonment. That’s why Kopp wasn’t up for the death penalty, not because of an extradition treaty with the French.
To offer another example, someone who sets a health clinic on fire can be tried by the state for arson, and by the federal government for a FACE violation. The penalties will differ somewhat. The evidentiary requirements to prove each case will differ somewhat, because while there may only have been one act, that act violated more than one law.
Competency to stand trial does not give you a free-for-all in your defense. There are all kinds of evidentiary rules which regulate what kind of evidence and arguments are fair game, and which aren’t. Relevance, for example, is one of the biggies, or hearsay (just think of the objections that Jack McCoy makes on Law & Order). A term like “religious freedom” may be disputed around the edges, but there is absolutely no legal standard which comes anywhere in the range of “it’s my religious freedom to kill people.” It’s been held that religion is not an excuse to violate federal law. Religious freedom is not a valid defense to killing someone.
So in short, no, he doesn’t have “every right to make some kind of fruit-loop argument.” No defendant has that right, and neither does any plaintiff.
Jill Says:
That’s a pretty good summary, but the full text of the law is not included. Not to worry though, I’m sure I just missed that part when I was skimming.
In a related example, if some wackjob committed arson and by the fire that person set managed to kill someone, I’d have no problem with charging that person with both arson and murder, even though but one match was struck.
But in this case, the crime committed was the murder of Dr. Barnett Slepian, which he already has gone to trial for (and was convicted). Then, at the federal level, he’s back in court for substantially the same offense, the murder of Dr. Barnett Slepian, except this time they are using the FACE law.
It isn’t the FACE law that I have a problem with, just the way it is being applied in this case. It’s also worth noting that a mythical ruling that would disallow federal action in this instance would not have the effect of striking down this law for everyone else. (indeed, it seems like a pretty good law to have overall.)
It’s my understanding that there’s no restriction preventing them from putting Kopp on trial for the murder of Dr. Slepian on both the state and federal level, and I think on the federal level it’s possible to get the death penalty, however Kopp’s Wikipedia article mentions something about his extradition from France. (Again, I would argue that trials on both the state and federal level is an end-run around double jeopardy.)
I don’t think it’s a valid defense, but I do think he has a right to make that argument. The jurors have the right to judge the law, how it’s applied in this particular case, and whether or not the accused broke it. That’s why he gets to face a jury of his peers, and not a judge or an empaneled bunch of lawyers.
Are you familiar with the John Peter Zenger case?
en.wikipedia.org/wiki/John_Peter_Zenger
Lawyers are prevented from making some kinds of arguments by the threat of disbarment. By defending himself, he neatly sidesteps this requirement, as long as the tin-pot dictator of a judge lets him.
You should also look at Ed Rosenthal case.
en.wikipedia.org/wiki/Ed_Rosenthal
You’re not worried that Kopp’s “religious freedom” arguments are really going to get him off, are you?
You keep saying you have a problem with it and people keep telling you that the problem you have with it isn’t actually a problem.
FACE is an anti-terrorism statute. The state tried him for murder. There would be no double-jeopardy problem because he was convicted in state court and DJ is meant to protect people who were acquitted from being re-tried on the same charges.
In any event, these aren’t the same charges. The purpose of FACE is to punish people who use violence as a way to intimidate people who work at clinics or who access clinics. Murdering someone is a pretty damn serious intimidation tactic. Ergo, he’s being tried as a terrorist. That he’s already been convicted of murder does not mean that he’s being tried for murder again. That’s a given. He’s been convicted for that. The question is whether he intended to intimidate people by killing Dr. Slepian.
No, because he won’t be permitted to make them to the jury. Courts have rules for the conduct of trial. He won’t get to speechify, except maybe in his opening and closing statements. The judge has made pre-trial rulings limiting witnesses and arguments, and anything that’s not relevant to the charges will not be admitted. Because religious freedom is not a valid defense to killing someone, he can’t raise it as a defense, and he won’t get to call witnesses to testify to his religious motivations.
It’s just the way it works. He’s being charged with a particular crime, and only relevant arguments and evidence will be admitted. This isn’t some special rule they made up just for him — if courts allowed anything and everything to come in, trials would never end.
Lawyers operate under rules, too, and are presumed to know better than a pro se litigant. But that doesn’t mean that the greater leeway pro se defendants get is so great that the rulebook is tossed.
And, dude, “tin-pot dictator?” Where are you getting this from, MRA literature?
Huh? What kind of red herring is that? Kopp’s not arguing religious freedom. He’s arguing lack of intent to kill. Since no one here is under the erroneous impression that he’s defending himself based on “religious freedom,” who would be worried about him getting off on that basis?
Seriously, what he TRIED to argue was that his act wasn’t criminal because it was done in the defense of others (the fetuses). That was shut down because a necessity defense only is applicable when you try to prevent an illegal act, not a legal act like providing abortions. He never tried to argue anything based on religious freedom.
zuzu Says:
That’s good enough for me. Too bad it wasn’t apparently allowed for Ed Rosenthal.
You have a problem with a defendant speaking his mind to the jury at his closing statement? As long as he, you know, keeps it civil, under a reasonable time limit, and avoids threating anyone?
What if abortion was outlawed and the defendant’s beliefs about their ownership of their own bodies was squelched from being aired to the jury? Would you still feel the same way?
Sorry, speculation on my part for why he would defend himself rather than use his appointed attorney. I don’t have the transcript in front of me.
If abortion was outlawed, he could use his necessity defense. Because then he would be saving the little baybeeez from an illegal act. But as Lesley says, you’re the one making up the religious freedom argument, not Kopp.
As for opening and closing statements, while there’s some leeway, they’re not carte blanche for any half-assed theory. They do have to follow the rules, too, and if the court has ruled that certain arguments can’t be used, they can’t be snuck in during opening and closing.
Your Ed Rosenthal example doesn’t really have any relevance here, because who his clients were didn’t affect the illegality of growing marijuana. Growing marijuana is illegal in California, and growing it for sick people isn’t any different than growing it for recreational use. It’s the same act.
I’m not sure why you have such trouble with the idea that there are rules for trial and there are limits placed on what evidence can be presented. A trial isn’t a soapbox; it has a goal.
Wow, neither do I. But the post you commented on spelled out his defense pretty clearly, even if you hadn’t read any other articles on the case.
zuzu Says:
No, you misunderstand. OK, an unrelated example. Let’s say I accidentally drop a soda can on the grass in the park. I see myself do this, so I immediately pick up the soda can and throw it in the trash, however, the law sees my gaff and decides to write me a ticket anyway. Because the ticket exceeds $20, I have the right to a jury trial (OK, stop laughing, let’s just pretend, for example.)
If I’m following along with what you are saying, the judge could rule that the fact that I immediately disposed of the soda can was not relevant to the issue at hand. I dropped the litter and I’m guilty. The judge decrees that no one is allowed to inform the jury of the basic facts of the case. Then, the judge instructs the jury that they do not have the right to decide whether or not the law is being fairly applied in this case, just whether or not I was guilty by dropping that can.
I, of course am barred from telling my side of the story to the jury. So all I can do is testify under oath that I did indeed drop that soda can. That’s all the data they have to go on.
And somehow you still think that I would receive a fair trial, while basic facts were not allowed to be aired?
I maintain that juries have the right to not only judge the law, but to decide if in this case whether or not the law was fairly applied in that particular case. Juries are suppose to be a check-and-balance, not preprogrammed meat-bots for the state.
Look, you still aren’t getting it. His necessity defense — I was defending the baybeeez — doesn’t meet the basic test for admission, which is that the behavior he claims he killed to stop, providing abortions, is legal.
Which means that he can’t bring it up, because it’s inadmissible and irrelevant. Because regardless of his motivations, he cannot claim that he was justified in killing an abortion provider in order to protect another because providing abortions is not legal. It’s not like he was stopping Dr. Slepian from killing an actual born infant and the only way to do it was to kill him. And that’s leaving aside the premeditation.
Same thing with the marijuana case. The judge ruled, correctly, that there was a danger of jury nullification if the defendant was allowed to play on the sympathy of the jury by introducing evidence about who he was selling weed to. Juries are supposed to apply the law as written, not as they wish it might be. Therefore, the judge was entirely correct in excluding testimony and evidence about the identity of the buyers, because it might prejudice the jury and lead them to decide the case based on sympathy for the buyers rather than the actual behavior of the defendant.
Your soda can scenario is as ridiculous as it is irrelvant. Because the charge would be littering, the court would have to let you introduce evidence to support your defense that you did not litter because you threw the can away. What you can’t do is introduce evidence that you were justified in dropping the can because regardless of what the law says, you have very good religious reasons for littering. And that’s what happened in those other cases. The defendants were not permitted to introduce evidence about *irrelevant* or *prejudicial* or *unavailable* theories of their cases. That doesn’t mean they weren’t permitted to mount *any* defense.
zuzu Says:
Jury nullification has a grand old tradition in our legal system, heading back before our country was even founded. Many of our freedoms, such as freedom of religion are descended from common law judgments. The already discussed John Peter Zenger case helped cement freedom of the press. Jury nullification ended the Salem witch trials, Northern juries refused to convict abolitionists who had violated the 1850 Fugitive Slave Law.
I’m unaware that jury nullification had been outlawed, which Amendment was that again?
Medical marijuana is legal in California. On the other hand, I could argue that back in 1917-19, the prevailing belief was that the federal government did not have the authority to regulate booze. They had to craft an amendment and go through all that bothersome work to get it ratified before they could enforce the Volstead Act. No such amendment was passed to allow the feds to regulate pot (Note: you probably don’t want to get me started on the endlessly elastic commerce clause)
Although the supremes seem to have slept thought that part of law school, I’m sure you remember Amendment 10:
It seems pretty clear even to me, a layperson, that if any government has the power to outlaw teh evil weed, it’s the states, not the feds.
Teh Prohibition has another lesson: Even with the amendment in place, jury nullifications or hung juries for alcohol offenses were common. That’s part of the reason why they had to repeal Prohibition. People were arguably losing respect for the law.
Oh, and this was from your jury nullification wikipedia link:
Yea, the judge has got to let you do that because, what? He’ll be disbarred? Haha!
In the Ed Rosenthal case, there was a mandatory minimums prison term of 5 years. Yet the backlash from the standard mischief the judge pulled during the trial was so bad that the judge broke that law and only gave Ed one day in prison, as time served.
Seven of the 12 jurors (and two alternative jurors) held a press conference to say how disappointed they were that they were mislead.
The Ninth Circuit later overturned the felony conviction of Ed Rosenthal, finding juror misconduct compromised his right to a fair trial. Ironically this was when one of the jurors questioned a lawyer friend about the Judge’s orders to the jury.
http://www.green-aid.com/appeal2.htm
I’m also pretty sure that with a name recognition Ed has, there had to be some kind of awful mischief going on during the Voir Dire process. Why they can’t randomly pick 12 people and a few extras after just the minimal amount of screening is beyond me.
The feds are after Ed again, but it gets even tougher to find 12 jurors that have never heard anything about the case before. He needs only one brave soul to hang the jury, 12 to acquit.
Oh and here’s John Silveira’s take on the voir dire process. His account, if true, shows how the courts push for the “meat-bot” preprogrammed jury panels.
http://www.backwoodshome.com/articles2/silveira71lw.html
Too bad Ed wasn’t prosecuted by the state, but by the federal government:
I stand by my assertion that the federal court properly excluded the evidence. Juries will continue to nullify where they feel the law is unfair, but that doesn’t mean the court has to allow prejudicial evidence that will pretty much ensure nullification.
And it’s too bad the jurors felt they were misled, but because the trial was on federal charges rather than state charges, the medical-marijuana defense was just not available.
Again, I don’t know why you can’t get your head around the idea that some evidence is admissible and some is not. “Due process” does not mean you get to throw out any old half-baked theory in your defense.
And are you seriously comparing drug laws to slavery? Because that’s just offensive.
Please, read that paragraph again. In it are three (3) examples of how jury nullification have made an impact on the judicial system we have today.
So explain this to me, you admit the jury can nullify, yet you think its perfectly OK for the judge to not allow the defense to educate the jury of their rights of nullification? And I presume you also feel it’s OK for the judge to LIE to the jury, telling them the exact opposite, that they are NOT allowed to judge the law?
You seem to be using the term “ evidence” where I would use the term “argument”, but answer me this. Would Ed and his legal team be allowed to argue that the federal drug laws were unconstitutional? Or would that be an argument that the judge would not allow the jury to hear? Please also explain why that argument would be inadmissible.
What the fuck are you talking about? It’s not a lie (or a LIE, for that matter) for the judge to tell the jury that they’re not allowed to judge the law. Because they are there to weigh the facts, not judge the law.
Not to the jury, they wouldn’t. Juries are finders of fact. Constitutionality is an issue of law, which is what the court decides. The time to argue constitutional issues is prior to trial, in motions to dismiss, or on appeal.
Maybe you should do a little research on what juries actually do before you start screaming about how unfair it all is.
SM, if you want to go to law school, please do so. Or get a good book about the law aimed at the intelligent layperson. Zuzu is not your law professor, and it’s not her job to explain every teeny little thing to you. Unless you’re willing to pay her hourly rate for legal advice, that is.
I see we’re at an impasse here, and it’s pointless to argue further. I think I’ve been plain and transparent in my claim that juries have the right and the duty to not only judge the accused, but to judge the law and how it applies. I gave historical examples. You somehow thought I was comparing drug laws to slavery. I suppose you could blame that on speed reading or something.
You, however have been somewhat less than transparent. You admit that jury nullification exists, but then seem to think prosecutors and judges have a duty to stamp the practice out. So nullification exists, but it’s not dishonest for a judge to tell juries that nullification does not exist. Well, OK…
Still, you might be right on something, because I haven’t really read much from people who advocate your point of view, simply because I haven’t stumbled upon any yet. So, do you have any good recommendations?
That’s it, SM. You’ve convinced me that everything I’ve learned in three years of law school and ten years of federal litigation practice is wrong, wrong, wrong, and you’re right.
You are the man, so I must bow to your superior knowledge.
How do you square this with the quotes in post 73? Are the quotes inaccurate?
Aw, you’re so cute when you get all sassy!
Look, I’m serious here. I know some people are against jury nullification, but this is the first time I’ve actually discussed it with someone.
And honestly, I’m really learning something here. So, I actually already knew that there were reasons why evidence could be excluded from a trial (like fruit of the poison tree), but this is the first time I really understood that the defense needed to stick to a certain preapproved defense strategy. That really depreciates the phrase ”had his/her day in court”, now doesn’t it?
On the issue of jury nullification, well I’ve got Thomas Jefferson, and John Adams on my side. Even though they are dead white guys who perpetuated the patriarchy, I’m still counting them as aces. Also, I’ve already read the stuff from groups such as the Fully Informed Jury Association, and formed an opinion from it.
But that doesn’t mean there isn’t another side of the story, and that’s what I’m asking.
So somewhere out there either there’s an honest argument where someone defends the practice of telling jurors that even if they think the law is being unfairly applied they have to convict if the state proves it’s case. I’d really like to read that argument and let that opinion weigh in with what I’ve already read, but I’ve not found it yet.
All I’m asking for is a pointer, I can go fetch it myself. Surely with your vast legal education and experience, that request is a piece of cake.
Otherwise, I’ve just got to assume that a bunch of lawyers, and judges (who are almost always lawyers) and a bunch of politicians (who are usually lawyers too, oddly enough), are trying to pull a fast one over all of the rest of us.
SM, did you miss where I pointed you to the federal rules of evidence?
And where I said courts have rules?
You know, maybe if you LISTENED to what I was trying to tell you rather than threw out a whole bunch of half-formed opinions you read somewhere and acted like you knew what the hell you were talking about, you might actually learn something and/or I might be inclined to take your questions seriously.
I don’t know what the agenda is of those groups you unsuccessfully linked, but it sounds like it’s a bunch of people who are upset that they don’t get to change the laws as jurors.
Jury nullification is a byproduct of the jury system, not its end. Juries can engage in nullification til the cows come home, but the only effect they’ll have is on that one case — and only in criminal cases, where the defendant can’t be tried if the jury acquits (in civil cases, the losing party can move for a judgment notwithstanding the verdict). Juries have to apply the law to the facts presented to them; an individual jury’s action doesn’t change the validity of the law; they’re basically saying when they nullify that the facts presented may support a guilty charge, but the law is unfair, so they’re going to acquit anyway. The courts, however, can strike down or change laws based on a single case.
RM, the quotes in order:
1. Maryland is a state, and its constitution has no bearing on federal trials. And we’re talking about federal trials.
2. This case just supports the right of the jury to acquit regardless of the instructions given, and holds that an acquittal may not be overturned due to jury nullification. That has nothing to do with the way courts typically work, where issues of law are decided by and narrowed down by the court prior to trial. Juries can only decide on what’s presented to them, and any number of claims or defenses may be stricken or excluded prior to trial and thus never presented to the jury. SM seems to have a real problem with this.
3. Lovely quote, but not authoritative. When did he say this? In what context? What was it being quoted in support of?
4. See answer to #1.
Jesus, people, let it go already.
As an uneducated layperson, even less educated than SM, it seems to me that the problem is this argument is going in circles.
SM: The courts shouldn’t work that way.
zuzu: The courts have to work that way because those are the rules.
SM: Why are those the rules
zuzu: Because the courts have decided that those are the rules.
SM: The courts shouldn’t work that way.
………
zuzu: “A trial isn’t a soapbox; it has a goal.”
Unfortunately, the goal seems to be obtaining a conviction rather than determining whether the law is just or not.
For those of us who have not been “educated” (I would personally say “indoctrinated”) into simply accepting legalities as just and proper simply because the courts say so, this does not seem right. I agree that there must be rules, but when the rules cannot be challenged, when the rules are assumed to be infallible, justice is not being served. Justice rests as much on the RULES being just as it does on everyone following them.
Your contention is that the courts work that way because those are the rules.
My uneducated, layman’s response is: The rules are wrong.
Hon, I really don’t care what you think, or if you think I’ve been indoctrinated. Go change the rules if you don’t like them. I have to work with them.
And incidentally, Standard Mischief’s questions were a gigantic derail from the topic of this post. Which has to do with someone who murdered a man for doing something legal.
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