Abortion Doctor Kermit Gosnell Now Faces Fewer Homicide Charges

[UPDATE 4/24/13 10:40 a.m.: This morning, Minehart reversed his acquittal of charges related to “Baby C,” and clarified he meant to acquit Gosnell on homicide charges for “Baby F.” Details: “Gosnell Judge Reverses Ruling.”]

When Judge Jeffrey Minehart issued his ruling today, acquitting Philadelphia abortion doctor Kermit Gosnell of three of seven first degree homicide charges, the ruling demonstrated a prosecution weakness that had become apparent over the last several weeks. Numerous eyewitnesses from Gosnell’s West Philadelphia abortion clinic testified to seeing various babies move or breathe or give some sign of life. Some testified to seeing numerous babies with a heartbeat. The heartbeat of a newborn is unmistakeable—the heart pounding, visibly, within a baby’s chest. But they have been able to present relatively little evidence about specific babies they clearly saw alive and then killed by Gosnell, or a staffer acting under his direction.

Kermit Gosnell (left) is on trial for homicides related to abortion services at his West Philadelphia clinic (right).

The result has been a fairly muddled case, in which jurors have been asked to consider evidence about seven babies, labeled A through G, while hearing a lot of stories from eyewitnesses who have difficulty remembering specific babies. One eyewitness attempted to explain her own inconsistency last week by explaining of Gosnell, “he snipped so many” it was difficult to keep track.

While prosecutors Ed Cameron and Joanne Pescatore appeared clearly upset by Minehart’s ruling, they might perhaps also feel relieved that four first degree homicide cases, with similar evidence to the three that were kicked, will eventually go before a jury that has spent the last five weeks awash in bloody anecdotes about procedures at Gosnell’s clinic. Minehart also refused to acquit Gosnell on a third degree homicide charge in the death of Karnamaya Mongar, a woman who came to him for an abortion and died, allegedly because his untrained staff administered an overdose of anesthetics.

Defense attorney Jack McMahon is expected to begin presenting witnesses in defense of Gosnell on Wednesday.

The three first degree homicide cases the judge threw out featured varying levels of evidence:

In the case of “Baby B,” prosecutors had an actual body, with a puncture wound to the back of its neck. As prosecutor Ed Cameron argued, “If the baby wasn’t born alive, why did Dr. Gosnell [cut a hole] in its neck to sever the spinal column? … The only logical inference is that the baby was born alive, and he did this to kill it.”

Prosecutors could only present eyewitness testimony on “Baby C,” which Gosnell employee Lynda Williams testified she “snipped” with surgical scissors—again to sever the spinal column. Williams pled guilty to homicide in connection with this baby. But during the Gosnell trial, she said she did not believe the baby was alive and that she saw the baby’s arm jump just once. The prosecution did present further eyewitness testimony, however, from another clinic staff member, Kareema Cross, who testified that Williams actually called her over to view the baby. Williams allegedly was able to pull on the baby’s arm and “the baby pulled it back” according to Cross’s testimony.

Prosecutors also brought forward evidence Cross had provided the grand jury, when she said Williams slit the baby’s neck “because the baby, I guess, because the baby was moving and breathing. And she see Dr. Gosnell do it so many times, I guess she felt, you know, she can do it. It’s okay.”

The final first degree charge Minehart kicked featured less vivd testimony. Former Gosnell employee Steven Massof, who acted as a doctor in Gosnell’s clinic though he was not licensed, testified that this baby issued one “respiratory excursion”—a breath—and that he could not be sure if the baby was “viable” outside the womb or was past 24 weeks’ gestation, the legal limit for an abortion in Pennsylvania. Massof also had pleaded guilty to homicide in connection with this baby.

Gosnell defense attorney Jack McMahon had attempted to have all of the homicide charges against Gosnell dropped, addressing each baby individually while also putting forward, in essence, one comprehensive argument. “The prosecution,” he said, “has failed to show that any of these babies was born alive.”

A “live birth” is necessary for a murder charge.

In cases where babies were seen to move or show some sign of life, McMahon argued, any one sign could be interpreted as some sort of post-death movement. “The prosecution is always presenting one arm, or one leg, or one breath,” he argued. “It’s never two arms or two legs or two breaths.”

Minehart took a recess of perhaps half an hour before returning to give his verdict on McMahon’s motions. However, he gave no rationale whatsoever for why he made the decisions he did.

The judge also acquitted Gosnell on one infanticide charge and all counts related to abuse of a corpse. (Regarding the latter charge, McMahon argued there was no proof that any of the baby feet, recovered from specimen jars, belonged to babies born alive.) But of course the big buzz in the courtroom was generated by the acquittal on those three homicide charges, which now will not go to the jury for a verdict.