Murderer Of Abortion Dr. Appears To Prepare "Justifiable Homicide" Defense

by Frederick Clarkson

In a stunning jailhouse interview with The Buffalo News, Kopp confessed to the murder, but insisted he did not intend to slay the doctor. The statements appear to be laying the ground for a defense based on the notion that his act was legitimate and necessary.

This is at once a major departure in Kopp's legal defense strategy and completely consistent with the legal theories of the anti-abortion Army of God as they have evolved over the past decade.

These views will be on display not only inside but also outside the courtroom. While Kopp's attorney Bruce A. Barket plans to make anti-abortion views the center of his defense, Army of God leader Michael Bray has cancelled the group's annual meeting, scheduled for January on the eve of the anniversary of Roe v. Wade, and called for Army of God members to rally outside the trial in Buffalo.

Kopp, charged with second-degree murder for the 1998 slaying of Slepian in Amherst, N.Y., says he did not intend to kill Slepian, only to wound him. Kopp told The Buffalo News that he was horrified when he learned that Slepian had died. Kopp had stalked Slepian and six other abortion providers and had planned the crime for a year, he told The News. Slepian had just returned from the synagogue where he and his family worshipped. The doctor's family was present when Kopp's bullet struck and witnessed his death.

The surprise confession represents a change in legal strategy since Kopp's original criminal defense attorney Paul J. Cambria refused to continue to represent him. Kopp's new lawyer has solid anti-abortion credentials, but no experience in a murder case.

"I consider this a crime of the worst magnitude," district attorney Frank J. Clark told The Buffalo News. "A man was gunned down in his own home, while his family was there. It was an assassination."

Since 1993 some members of the anti-abortion movement began ascribing to the belief that assaults against abortion doctors could be "justifiable homicide." The philosophy of the movement evolved in the late 1980s from violence against property to violence against individuals.

The idea was first publicly floated by Roman Catholic priest David Trosch of Mobile, Ala. Later, the Rev. Paul Hill publicly justified the murder of abortion provider Dr. David Gunn with a petition, signed by about 35 others, to the effect that killing abortion providers was justified in defense of innocent lives. The following year, Hill murdered Dr. John Britton and an escort and seriously wounded another. Hill is now on Florida's death row for Britton's killing.

Around this time, a law student at Regent University (founded by televangelist Pat Robertson) named Michael Hirsh formally presented the theory of justifiable homicide as his thesis paper.

He argued -- based on Florida law and his notion of biblical law -- that Gunn's murder was indeed justifiable homicide. Army of God leader Bray later credited Hirsh's paper as informing his thinking in his influential 1994 book "A Time to Kill." This book has served as perhaps the main theoretical text justifying anti-abortion violence and theocratic action against a government deemed out of sync with biblical law.

Hirsh's theory is a version of a rarely accepted line of defense called the "necessity defense," in which a crime is sometimes justified to a jury because it prevented a greater crime. It is sometimes used successfully by wives who kill their husbands in domestic abuse situations.

Antiwar, anti-nuclear and anti-abortion activists have sought to use it in order to turn criminal trials into political theater. However, judges rarely allow this, and even more rarely do juries buy the argument. For example, Army of God member John Brockhoeft unsuccessfully sought to use the necessity defense and was convicted of several clinic arsons in the 1980s.

The evidence against Kopp was very strong and may be why he changed his legal strategy. Since there will be no death penalty in this case, Kopp evidently intends to use the platform of his upcoming trial, and in a likely series of trials for related crimes, to advance his views.

In addition to Slepian's murder, Kopp has also been indicted in one other shooting and is suspected in the series of "Remembrance Day" shootings of three Canadian and one unidentified American doctor, beginning with Dr. Garson Romalis in 1994. Remembrance Day memorializes Canadian war veterans and has been adopted by anti-abortion groups there. The series of crimes ended with the Oct. 23, 1998 assassination of Slepian and Kopp's subsequent flight.

Kopp was on the FBI's Most Wanted List for over two years before his capture in France in March 2001. He has pleaded not guilty to the New York state charge of second-degree murder. He also has pleaded not guilty to the related charges of violating the Freedom of Access to Clinic Entrances Act, which prohibits violence and threats of violence to impede receiving or providing abortion services.

Kopp was present at pivotal episodes in the history of militant anti-abortion activism. He has been arrested in connection with numerous clinic blockades, including a major blockade of the Ladies Center in Pensacola. Fla., in 1986.

The center was later the site of the first known murder of an abortion provider, Gunn, by local clinic protestor Michael Griffin. Kopp is also credited with authoring sections of the Army of God manual, a how-to for violence against abortion providers. Kopp also served as the advance man for the Catholic direct-action group Lambs of Christ, headed by the Rev. Norman Weslin. In 1992 Weslin told a reporter: "Unless you understand that this is a colossal war between Jesus Christ and Satan, you don't understand what we are doing."

On Nov. 13, just days before the News ran Kopp's jailhouse confession, Bray, one of the main theorists of the Army of God, posted an essay on the group's Web site titled "James Kopp, Man of Peace."

Up until that time, militant anti-abortion groups had generally taken the position that Kopp was innocent and believed in non-violence, and emphasized that he had once worked for Mother Theresa's Sisters of Charity. Life Dynamics of Denton, Texas went so far as to publish a report suggesting that the FBI was seeking to frame Kopp for the crime.

But Bray conceded that Kopp had shot Slepian, describing the action as the "termination of the murderer" and added that it was a deed quite consistent with Kopp's life of service for the "innocent, brutalized womb children of America."

"[W]ho can deny," Bray asked, "that Mr. Kopp loved the innocent as he protected them with the efficacious force of a bullet? Atomic Dog did the right thing. He did what he thought he had to do. And he did it well." Atomic Dog is Kopp's moniker in Army of God.

Whether the judge allows a justifiable homicide or necessity defense in the courtroom remains to be seen. However, Michael Bray and the Army of God will certainly present their anti-abortion views in the news media. It is unlikely however, that they will explain their ultimate goal of establishing a Christian theocracy through violence.