Three of eight murder charges were thrown out Tuesday against a Philadelphia abortion provider whose clinic was called a "house of horrors," apparently because the judge had not heard sufficient evidence from prosecutors that the three babies were viable, born alive and then killed.
Dr. Kermit Gosnell, 72, still faces the death penalty if convicted of first-degree murder in four remaining infant deaths. Prosecutors have argued that the babies were viable and that Gosnell and his staff cut the back of their necks to kill them. The judge also upheld murder charges in a patient's overdose death.
Common Pleas Judge Jeffrey Minehart did not explain why he granted some of the defense motion to acquit Gosnell after more than a month of prosecution testimony. Such motions are routine but rarely granted.
The defense questioned testimony from staffers who said they had seen babies move, cry or breathe. McMahon argued that each testified to seeing only a single movement or breath.
"These are not the movements of a live child," McMahon said. "There is not one piece -- not one -- of objective, scientific evidence that anyone was born alive."
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The trial resumed Tuesday afternoon with character witnesses testifying for Gosnell's co-defendant, Eileen O'Neill. She is charged with three counts of theft for practicing medicine without a license. Minehart dismissed six additional counts of that charge Tuesday.
The jury will also ponder third-degree murder charges against Gosnell for the 2009 overdose death of 41-year-old Karnamaya Mongar, a recent refugee to the U.S. who died after an abortion at hiss Women's Medical Society.
McMahon argued that third-degree requires malice, or "conscious disregard" for her life.
"She wasn't treated any differently than any of the other thousands of other people who went through there," McMahon argued Tuesday, in a preview of his likely closing arguments.
Prosecutors might concede that point themselves at closings, and argue that patients were routinely exposed to unsanitary, intentionally reckless conditions at the clinic. Former staffers have testified that patients received heavy sedatives and painkillers from untrained workers while Gosnell was offsite, and were then left in waiting rooms for hours, often unattended, before Gosnell arrived for the late-night surgeries.
Despite that, the workers testified that they had never seen a woman go into distress before Mongar. Yet a 2011 grand jury report alleges that dozens of women were injured at Gosnell's clinic over the past 30 years, calling it a "house of horrors." Some left with torn wombs or bowels, some with venereal disease contracted through the reuse of non-sterilized equipment, and some left with fetal remains still inside them, the report alleged. And the report blamed Gosnell for an earlier maternal death that was not charged.
Assistant District Attorney Ed Cameron, in defending the Mongar charge, said it stemmed from the totality of the circumstances at Gosnell's clinic. They included the repeated medication dosages given by medical assistants; the doctor's absence during most of her two-day visit; and the hour it took to open a locked side door and take her by stretcher to an ambulance.
And the prosecutor questioned why else Gosnell and his staff would "snip" babies if they were not born alive. The brains were intact, so it was not done to make the delivery easier, he said.
"Why would you cut a baby in the back of the neck unless you were killing it?" Cameron argued.
Gosnell had also been charged with five counts of abuse of a corpse, for removing the feet from aborted fetuses and storing them in specimen jars. McMahon argued that his client did so to keep DNA samples, and Minehart agreed to dismiss those counts.
Minehart upheld charges that Gosnell violated Pennsylvania's abortion laws by performing abortions after 24 weeks and failing to counsel women 24 hours before the procedure.