PHILADELPHIA — A Philadelphia judge tossed out three of eight murder charges Tuesday in the high-profile trial of a Philadelphia abortion provider accused of killing babies allegedly born alive at his clinic.
Dr. Kermit Gosnell, 72, still faces the death penalty if convicted on four remaining counts of first-degree murder involving babies allegedly killed with scissors after being born alive.
Judge Jeffrey Minehart did not explain why he dismissed the three murder counts, but apparently felt he had not heard sufficient evidence from prosecutors that those three babies were viable, born alive and then killed. Much of the evidence during the five-week prosecution case has come from the recollection of former staff members, though their testimony was bolstered by graphic photographs of some of the aborted babies.
Prosecutors argued that the babies were viable and that Gosnell and his staff cut the back of their necks to kill them.
“Why would you cut a baby in the back of the neck unless you were killing it?” Assistant District Attorney Ed Cameron asked.
The defense questioned testimony from staffers who said they had seen babies move, cry or breathe. Gosnell’s lawyer, Jack 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.”
The judge also upheld murder charges in a patient’s overdose death. Gosnell is charged with third-degree murder in the 2009 death of Karnamaya Mongar, 41, a recent refugee to the United States who died after an abortion at his Women’s Medical Society.
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.
Gosnell had also been charged with five counts of abuse of a corpse, for removing the feet from aborted fetuses. McMahon argued that his client did so to keep DNA samples, and Minehart agreed to dismiss those counts.