Posted on 02/05/2003 2:33:49 PM PST by Marianne
James C. Kopp may have confessed - with his lawyer present - to the killing of Dr. Barnett A. Slepian, but you wouldn't know it by the court battles that very same attorney is waging.
Kopp's attorney is challenging the legality of three FBI searches, a new indictment based on his November confession and whether authorities are violating Kopp's constitutional rights by prosecuting him in both state and federal courts.
And the prosecutor in the case said that, by itself, Kopp's confession to The Buffalo News would only prove first-degree manslaughter, not the second-degree murder that he's been charged with in the Oct. 23, 1998, killing of Slepian.
"The confession itself does not add up to murder," Joseph J. Marusak, deputy Erie County district attorney, said after arguments Tuesday before County Judge Michael L. D'Amico.
"Even though he has taken the issue of identity out, who pulled the trigger, we still have the issue of intent in his mind when he pulled the trigger," Marusak told reporters.
"I still have to lay out all the elements of my case," the prosecutor said, declining to say more because of a gag order the judge imposed.
Bruce A. Barket, Kopp's Long Island attorney, was not in court Tuesday, but his co-counsel, John V. Elmore, challenged three of 36 searches conducted in the 21/2-year hunt for Kopp, primarily by FBI agents.
Elmore, with Kopp seated next to him, also said the defense has filed motions to dismiss the charges based on constitutional grounds.
One of those motions filed with D'Amico contends that a second indictment against Kopp should be dismissed because it was not part of the extradition agreement to return Kopp from France in June 2002.
Marusak said prosecutors have been in touch with French authorities, and he is confident the new indictment will pass muster with the court.
Prosecutors, who originally charged Kopp with intentional murder, went back in December and indicted him again after his confession. This time they also charged him on a murder count involving reckless endangerment and depraved indifference to life, after Kopp said he only meant to wound Slepian, not kill him. They also indicted him again for intentional murder.
Legal sources have said that Kopp's confession may make some parts of Marusak's case easier to prove. Kopp admitted, for example, that he bought the SKS rifle used in the shooting from a pawnshop in Tennessee.
But the confession does not change the complexity of the case. The immensity of the evidence collected by federal agents and Amherst Police, as many as 500,000 pages of documents, appears likely to push the starting date of the trial back at least until mid- to late March or possibly even into April. D'Amico had hoped to start the trial this month.
Marusak said he and his staff have been working steadily to catalog the evidence and examine each document to see what has to be turned over to the defense before the trial begins. He told the judge he needed more time.
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