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Burden of Proof

Accused Killer James Kopp: Will He Be Extradited?

Aired March 30, 2001 - 12:30 p.m. ET



UNIDENTIFIED FEMALE: We have all confidence that he will soon be brought to justice.

JOHN ASHCROFT, ATTORNEY GENERAL: These charges are charges of violence that ended in the tragic death of an individual. If these charges are proved properly, they reflect a very serious breach in the law.


ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.


James Kopp's life on the run has come to an end. After a 2 1/2 year international manhunt, authorities finally caught up to the fugitive Thursday in Dinan, France. Kopp was one of the FBI's 10 most wanted fugitives, sought in the killing of abortion provider Barnett Slepian who died in the kitchen of his home from a sniper's bullet.

Now, to prosecute Kopp stateside, the U.S. authorities will have to extradite him from France. But a potential death penalty trial could cause some sticking points with the French, who outlawed executions two decades ago. Also arrested yesterday: two anti- abortion activists in New York City -- investigators say Loretta Claire Marra and Dennis John Malvasi were plotting to hide Kopp in New York.

So joining us today from Buffalo is Erie County District Attorney Frank Clark. From Boston, we're joined by Michael Scharf, professor of international law. From Dallas, we're joined by Eve Paul, chief counsel for Planned Parenthood, who's attending the organizations annual conference. From Richmond, Virginia, we're joined by Robert O'Neil, founding director of the Thomas Jefferson Center for the Protection of Free Expression. And here in Washington: Dustin Vandehoef (ph), former federal prosecutor Pam Stuart and Kelly Vanveldhuizen (ph); and in the back: Bridget Waddilove (ph), Marsha Griffiths (ph) and Stephanie Wells (ph).

And also joining us from Buffalo is CNN correspondent Bill Delaney. Bill, bring me up to date to latest of what is happening. And what do we know about Kopp?

BILL DELANEY, CNN CORRESPONDENT: Well, Roger, as you said, it was in October of 1998 that federal and state authorities say James Kopp shot Dr. Barnett Slepian in Dr. Slepian's house, Dr. Slepian having just returned from synagogue. He was shot in front of his wife and four children.

Kopp then, authorities say, went to the run. It wasn't until the summer of 1999 that a grand jury was able to be convened here, which brought a three-count indictment against him, including a main count of second-degree murder, which carries a charge of 25-years-to-life. The main piece of evidence that we know about that brought that charge: a hair found in a mask found buried behind the Kopp -- behind the Slepian home five months after the shooting.

Now, as you said, Roger, the complicating factor here is that there's a federal charge -- as far as extradition is concerned -- there's a federal charge of crime of violence with a firearm. That can carry the death penalty. Now, France doesn't have the death penalty, and has never allowed anyone to leave French soil who might face capital punishment back on their own home country's turf -- so some concern here that the extradition may be complicated, although authorities are expressing optimism that, eventually, James Kopp will return here to Buffalo to face either state or -- and/or federal charges.

COSSACK: Bill, what about Loretta Marra and Dennis Malvasi, the two people who were arrested in New York and charged, at least allegedly, with attempting or trying to help Kopp?

DELANEY: Well, yes, Roger, authorities tell us they've had a long relationship -- Malvasi, Marra and Kopp -- dating back to the '90s, Malvasi and Marra long-time, like Kopp, anti-abortion activists. Malvasi spent seven years in prison for dynamiting or attempting to dynamite some four abortion clinics in and around New York. Authorities say they've been communicating with Slepian on the run via e-mails and via coded messages over the phone.

They say that the -- Malvasi and Marra have been in touch most recently with him as he went to France. He's been in Ireland for the past year or so.

COSSACK: All right, thank you, Bill Delaney, reporting from Buffalo.

Let's now go to Boston to Michael Scharf.

Michael, are we going to -- is the United States going to have a difficult time in extraditing this man from France?

MICHAEL SCHARF, INTERNATIONAL LAW PROFESSOR: Well, I think, ultimately, we will get him back from France. But we are going to have to make a decision about whether we will be dropping the capital charges. And that's because our extradition treaty with France has a provision called death penalty assurance provision, which allows France, at its discretion, to request an assurance by the United States that the death penalty will not be imposed. And, as you've heard, France does not have the death penalty. What you should also know is that European Court of Human Rights has ruled that no one can be extradited from any European country to the United States without a death penalty assurance, because the European court considered the -- quote -- "death-role phenomenon to be a form of torture and degrading treatment."

So what the federal government is going to have to decide is whether it wants to ask for a lesser offense than one that carries with it the death penalty. If not, we may not be able to get him back from France through the extradition process.

COSSACK: All right, Pam Stuart, former federal prosecutor, there are two parallel charges, if you will, facing Mr. Kopp, one -- 25- years-to-life is the possible punishment under the state of New York -- and one the possibility of the death penalty from the federal government. In terms of what we have just heard, the difficulty of extraditing him, will the federal government back off?

PAM STUART, FORMER FEDERAL PROSECUTOR: Yes, they will. Typically, in cases like this, they are much more interested in getting the fugitive here to the United States to prosecute them. So it is quite common for the Justice Department to present those assurances through the diplomatic channel that will be required for the French judges to find that Mr. Kopp is extraditable.

COSSACK: All right, joining me now also from Buffalo, New York is Frank Clark. Frank is the Erie County DA.

Mr. -- Sheriff Clark, thank you for joining us.

How -- tell us about -- what you can, at least -- the evidence that you have against Mr. Kopp. It's our understanding that you also found a weapon that was buried in the woods behind Mr. Slepian's home.


Surprisingly, that was uncovered about four or five months after the shooting itself. Once the winter thaw had occurred, investigators went back in the woods behind the Slepian household. And they find the weapon, which we tied to him through forensic and other evidence.

We also found a mask and number of other things, where we've gotten hair samples and other evidence which we are using to tie those to Kopp to satisfy the element of identity.

COSSACK: Sheriff, why was Mr. Kopp indicted on second-degree murder in New York? We -- you know, it seemed to us that it was a case of first degree in the sense that there was premeditation. What was your thinking and the district attorney's thinking?

CLARK: Well, I agree with you that, indeed, it was a well- planned, premeditated act. But the death penalty statute, murder in the first degree in the state of New York, enumerates those instances where you can seek that punishment. And premeditated murder is not one of the enumerated circumstances which carries the death penalty possibility.

COSSACK: I think, earlier, Mr. Clark, I called you the sheriff. And you are the district attorney of Erie County, isn't that correct?

CLARK: That is correct, yes.

COSSACK: All right.

So when do you think, if you are successful, Mr. Kopp will be back in this country and prepared to stand trial?

CLARK: Well, you know, I think that probably depends upon a number of things: how quickly we can satisfy any objections that the French government might have to the extradition process. You have already mentioned some, the death penalty being one -- the prospect of both a state and a federal prosecution, I'm sure, being another.

Assuming we can clear those hurdles without a great deal of trouble, I would hope -- we were talking about


COSSACK: Let me interrupt you one second. I'm sorry. But we have to go to Atlanta for breaking news.


COSSACK: A federal appeals court has ruled that the first amendment protects an antiabortion Web site which lists the names and addresses of doctors who provide abortions.

Planned Parenthood and four doctors had a $107 million verdict against the site, which called these doctors baby butchers and criminals.

But a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit threw out the judgment, saying that the antiabortion sentiment is protected free speech.

Eve Paul, I want to get your reaction to the decision. And I want to ask you, in some ways, wasn't it sort of expected?

EVE PAUL, PLANNED PARENTHOOD FEDERATION: Not really, no. It was not expected.

And we believe it was a wrong decision. These people are terrorists. They are not political people who are just making a speech. They are terrorists.

And the arrest of James Kopp in France proved something, because Dr. Slepian, who is the doctor that was murdered, his name was up on the Web site that these people had posted. They posted the names, addresses, telephone numbers, pictures of all these wonderful doctors who risk their lives every day to save women. And his name was up there.

And immediately after he was killed, a line was drawn through his name. So that proves to us that there is a connection.

Now the court said in its opinion that there was no connection, that there were no immediate killings after these names were posted up on the Web. That just is wrong. Dr. Slepian is our classic example.

And this is a license to kill. This court decision really just encourages the kind of activity that creates the climate of intimidation and violence that has made it almost impossible for doctors to help women who are in need of abortion services.

COSSACK: Robert O'Neil, the court said in this case that in fact this was protected free speech. Horrible as it may be, uncomfortable as it maybe, it's protected free speech because it didn't directly urge violence. It was a political speech.

Is that sort of the gist of the court's decision? And do you think it will hold up on appeal?

ROBERT O'NEIL, THOMAS JEFFERSON CENTER: I suspect if there is an appeal, it will hold up.

The court actually went further than we in our brief had urged them to go. We didn't argue that this despicable message is necessarily protected. What we said is that you can't punish it under the standard the district judge applied, without putting equally at risk several rights, protests, consumer boycotts, labor union organizing and other forms of what occasionally become violent and outspoken rhetoric.

What the court of appeals did was to rule that this material, these statements, are essentially protected by the first amendment, in part because they weren't directed at any one individual, and in part because they didn't meet the very high standard that the Supreme Court has set for what it calls a true threat.

COSSACK: But Mr. O'Neil, let me -- Robert, let's talk about what Eve Paul has said. And the suggestion is, look, the fact of truth is that they had pictures of these doctors who perform these abortions on their Web site. And in fact, there was Dr. Slepian's picture was crossed out after he was shot. And if that isn't somehow -- I suppose the argument is implicitly, that sort of urging people who believe the way they do to go ahead and do this.

O'NEIL: It seems to me an outrageous way to treat another human being. With that, I agree.

But that doesn't necessarily mean that you can impose damages on someone who says things about -- of that sort, about a fellow citizen. That's a different question.

Was it unsettling? Was it disquieting? Was it likely to endanger fear? Clearly.

But was it a threat? Was it an incitement? Those being the two standards that the Court applies to take speech out of the first amendment. I agree with the court of appeals that it was not either a true threat or an actionable incitement.

COSSACK: All right, let's take a break. We're going to have more debate on free speech and breaking developments on foot-and-mouth disease, after this short break. Stay with us.


COSSACK: We're back and we're talking, of course, about free speech. Pam Stuart, in the case that the ninth circuit decided yesterday, some of the facts were like this: It was called the Nuremberg Web site, and they called some of the abortion providers "baby butchers," gave their names and addresses, which obviously caused a great deal of fear to the doctors, and some of them even started wearing bulletproof vests. Now if that is not implied violence, I don't know what is, but the ninth circuit said, "free speech."

STUART: Well I think, Roger, the reason they did that in order to put the pieces together, you have to think about what audience that site is directed at. And maybe we think in terms of some people, like Mr. Kopp, who would go out and take that as an invitation to kill somebody on this Web site. But if you turn it around say somebody else had a Web site and they put up the name of gays who were priests in a religious denomination that didn't allow that, you wouldn't expect the congregation to run out and murder them.

So I think it really was decision based solely on the content of the Web site.

COSSACK: Eve, are you going to appeal this case, and if so, do you think you are going to be successful? You know, this is horrible, horrible activity, but it may very well be protected by the First Amendment.

PAUL: Well, I expect we will ask for an en banc review, which means a review by the entire court for the ninth circuit. This was decided by a panel of three judges, and we believe they are wrong. We really think this is a true threat, and the fact these murders are taking place, Congress made findings when they passed the freedom of access to clinic entrances act, that there was a pattern of violence going on in this country, and I think we have to do something to stop it.

I think the time has come -- we believe in free speech as much as anyone, but we think the time has come to put a stop to the kind of terrorism that is preventing women all over the country from getting needed medical services.

COSSACK: Robert, when you listen to Eve and how she phrases the issue of the stopping of violence this decision becomes hard to understand. But in fact, to understand it you have to almost broaden it out a little bit, don't you?

O'NEIL: You do have to think of the implications down the road. One analogy that comes to mind is, suppose the labor union engaged in a pretty militant organizing drive, and they put the names of the senior officers of the company on their Web site and draw lines through them at various times and give their addresses and so on.

I can't imagine that a jury would be allowed to impose damages against the union under those circumstances. Or suppose it were a civil rights group that targeted a company in the same way.

COSSACK: But what if you knew that there were violent union members who, in the past, had resorted to violence by killing and shooting, and you knew these people were out there and were looking directly at your Web site. Would that change things?

O'NEIL: Probably not unless you had clear evidence either of a threat directed to an identified person, or an actual incitement. If either of those standards is met and rhetoric of this kind, if it goes a little further, might well cross either or both of those lines, but until it does, and until the jury is charged that it has to find the rhetoric has crossed the line, then you are creating more problems than you're solving buy allowing damages to be imposed in a case of this type.

COSSACK: I'm afraid that's all the time we have for today. Thanks to our guests, and thank you for watching. Today on CNN's "TALKBACK LIVE," do you care what Oklahoma bomber Timothy McVeigh has to say?

Send your e-mail to Bobbie Battista and weigh in on "Free-for-All Friday" at 3:00 p.m. Eastern time. And we'll be back Monday with one more edition of BURDEN OF PROOF. We'll see you then.



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