The defense in the murder trial of West Philadelphia abortion doctor Kermit Gosnell began Tuesday with a limited victory for the 72-year-old physician: dismissal of three of seven counts on which he could have faced the death penalty.
Common Pleas Court Judge Jeffrey P. Minehart did not state why he dismissed the three murder counts.
The remaining four first-degree murder counts will go to the jury. A guilty verdict on any of them would result in the jury's deciding if Gosnell should be put to death or spend life in prison without parole.
Dismissal of the counts came during a hotly argued hearing on Gosnell's motion for a directed verdict of acquittal.
Before Minehart announced his decision, the crowded courtroom of reporters and antiabortion partisans was warned against reacting to the decision in any way.
A defense motion for acquittal is filed after the prosecution completes its case and before defense testimony begins. Basically, the defense argues that a charge or charges should not be allowed to go to a jury for a verdict because prosecutors had failed to prove their case beyond a reasonable doubt.
Gosnell attorney Jack McMahon argued that Minehart should acquit Gosnell of all seven first-degree murder counts, each involving a baby born alive during a late-term abortion and then allegedly killed by Gosnell.
McMahon argued that the limited movement in the babies described by witnesses was not legally sufficient to conclude that they were alive. He also argued that regardless of movement, the fetuses were doomed because of Gosnell's use of the abortion drug Digoxin, a heart drug that kills a fetus in the womb.
"I know what everyone wants this to be, but that's not what the evidence is," argued McMahon.
Assistant District Attorney Edward Cameron said six of the seven cases were backed by testimony that babies were born alive and moving, and were killed by snipping their spinal cords with scissors.
The seventh, Cameron argued, was a 28-week-old known as "Baby Boy B," found in a freezer in Gosnell's clinic with a large hole in his neck. Pathologists testified that they could not say if the fetus was born alive. Cameron cited medical data that 70 percent to 80 percent of 28-week-old premature births survive: "Why put a hole in the neck of a baby unless you're killing it?"
The Baby Boy B case was one of the three counts dismissed by Minehart.
The judge also dismissed one count of infanticide involving an aborted fetus that McMahon had argued was too young to have survived outside the womb. And he dismissed five counts of abuse of corpse involving five specimen jars of fetal feet found in a cabinet at Gosnell's clinic.
Minehart also denied an acquittal motion filed by James Berardinelli, the attorney for Gosnell codefendant Eileen O'Neill.
O'Neill, 56, of Phoenixville, a medical school graduate without a license who saw general-admission patients in Gosnell's Women's Medical Society clinic at 3801 Lancaster Ave., is charged with participating in the operation of a corrupt organization.
Minehart did grant Berardinelli's motion - unopposed by prosecutors - to dismiss six counts of theft by deception involving O'Neill.
Those counts involved patients who allegedly were charged, or whose insurance was billed, for medical services by the unlicensed O'Neill.
Berardinelli called eight witnesses Tuesday, almost all character witnesses who praised O'Neill's reputation for honesty and her skill as a doctor.
One, Lorna Stuart, a Phoenixville physician, testified that she agreed to be O'Neill's preceptor, or sponsor, in 2009 when O'Neill was trying to get licensed in Pennsylvania.
"She was good," Stuart said. "I wish I could hire her."
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