Published April 30, 2013
Jurors in the murder trial of Philadelphia abortion doctor Kermit B. Gosnell began deliberations Tuesday in what will likely be a long process due to the fact he is charged with five murder counts.
The jury dismissed for the day Tuesday afternoon, and will resume deliberations Wednesday morning.
Closing arguments in the murder trial alternated between the defense's insistence that Gosnell's office was no "house of horrors," to the prosecution's brutal depiction of the deaths of a woman and four viable babies.
Gosnell had declined to testify in his defense or even call witnesses at his capital murder trial. Instead, his attorney, Jack McMahon, offered a passionate, often angry defense of his client, blaming the intense media interest in the case and the prosecution for creating a "tremendous rush to judgment."
"Never in my life have I seen the presumption of innocence more trampled on, stomped on, than in this case," McMahon said, arguing that the overdose death of the woman at his West Philadelphia clinic was a "tragic accident" and that there was "no scientific evidence" that Gosnell, 72, killed babies after they were born alive.
But Assistant District Attorney Ed Cameron, in his closing argument, told a story about taking his sick dog to the veterinarian to be put down, with a shot to induce sleep first. "These babies didn't even get that," he said.
"My dog was treated better than he treated babies and women," Cameron said. "And that's because he didn't care. He created an assembly line, with no regard for these women whatsoever."
The judge reminded members of the jury to ignore portions of the emotional closing arguments, including charges of racism.
"I attribute that to the emotion of this case. None of that is relevant to your consideration...it's not something you should consider in your deliberations. It's not part of the evidence," the judge said.
A string of former employees have testified that Gosnell relied on untrained staff to sedate and monitor women as they waited for abortions.
Authorities have also said the abortion clinic was operated in filthy conditions, and a grand jury report called it a "house of horrors."
But during closing arguments Monday, defense attorney Jack McMahon showed photographs of a relatively neat waiting room and other areas in Gosnell's clinic, saying that pictures don't lie.
He said the clinic wasn't perfect, but it wasn't the criminal enterprise that prosecutors claim.
Prosecutors say Gosnell killed viable babies born alive after putting a steady stream of often low-income, minority women through labor and delivery. Former employees have testified that Gosnell taught them to "snip" babies' necks after they were delivered to "ensure fetal demise."
Gosnell also is charged in the overdose death of a patient, 41-year-old refugee Karnamaya Mongar, of Woodbridge, Va.
The jury must now weigh the five murder counts, along with lesser charges that include racketeering, performing illegal abortions after 24 weeks, failing to observe the 24-hour waiting period and endangering a child's welfare for employing a 15-year-old in the procedure area.
A lawyer for 56-year-old Eileen O'Neill, Gosnell's co-defendant, said Monday that prosecutors didn't prove their case against her.
O'Neill, of Phoenixville, is charged with theft and isn't licensed to practice medicine, but defense attorney James Berardinelli told the jury in closing arguments Monday that prosecutors failed to prove that O'Neill billed as a licensed doctor.
He likened O’Neill’s charge – theft by deception – to a "scam."
"There is no criminal charge called 'practicing without a license,'" he said. "It's not their license; it's their experience -- that's what you're paying for."
Berardinelli says O’Neill consulted with Gosnell for any patient she saw and she mostly treated geriatric patients and wasn't involved in surgical abortions.
Prosecution witnesses say they got prescriptions from O'Neill pre-signed by Gosnell and never knew she wasn't licensed.
Berardinelli concluded his statements by going over contradictions in witness testimony regarding the prescriptions, and stressing that the burden of proof is on the prosecution.
"This is a decent, law-abiding, honest person. That's her reputation," he said, asking the judge to acquit O’Neill of her charges.
McMahon has argued that there were no live births at the clinic, and he found some support from a prosecution witness, Philadelphia's top medical examiner. Dr. Sam Gulino, who examined 47 aborted fetuses stored in freezers at the clinic, said he could not definitively say if any had taken a breath because the lung tissue had deteriorated.
The prosecution's other evidence to support the live birth argument comes from former employees, who testified that they saw aborted babies move, breathe or even cry. McMahon challenged them on cross-examination, questioning whether they had instead seen post-mortem spasms.
"You have to have definite, voluntary movement," McMahon argued.
The jury has seen a graphic photograph of some of the aborted babies and a worker testified that Gosnell joked that one was so big "it could walk to the bus."
Lynda Williams, Adrianne Moton and Sherry West, all untrained clinic workers, and unlicensed doctor Stephen Massof have each pleaded guilty to third-degree murder charges and testified against Gosnell. And four others have pleaded guilty to lesser charges, including Gosnell's wife, Pearl.
Gosnell did not testify, but could take the stand in the penalty phase if he is convicted of first-degree murder. Prosecutors are seeking the death penalty.
Prosecutors say Gosnell is a misogynist for the way he treated female patients while the inner-city doctor described himself as an altruist in a 2010 interview with the Philadelphia Daily News.
"I wanted to be an effective, positive force in the minority community," Gosnell said.
The Associated Press contributed to this report