PHILADELPHIA (AP) — 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.”
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.