Judge reinstates murder count in Gosnell trial, dismisses another; Update: “Defense rests”?

posted at 1:21 pm on April 24, 2013 by Ed Morrissey

At the beginning of a defense case in a criminal trial, attorneys will routinely move to dismiss some or all of the charges on the basis of a failure by the prosecution to present enough evidence.  The judge in the trial of Kermit Gosnell agreed this week on three of the murder counts, but has since reconsidered on one count.  Judge Jeffrey Minehart reinstated the charge related to “Baby C,” whom staffers testified breathed on his own for 20 minutes after the botched abortion, admitting a mistake in his order:

Common Pleas Judge Jeffrey Minehart had ruled Tuesday that prosecutors over the past month failed to make a case on three of the seven first-degree murder counts, involving aborted babies known as Baby B, Baby C and Baby G.

On Wednesday, Minehart clarified that he did not intend to dismiss charges related to Baby C, which former employee Lynda Williams admits killing after it was alive for 20 minutes.

Instead, Minehart has thrown out the charges involving Baby F, which allegedly jerked its leg after it was born. Another staff member says Gosnell then cut the baby’s neck to “ensure fetal demise.”

To be clear, Minehart has still thrown out three of the murder charges, which are now down to five — four children and Karnamaya Monger.  Minehart refused to dismiss those charges, denying the defense motion.  That means Jack McMahon will have to present a defense, starting as early as this afternoon, in a case that could still carry the death penalty for the abortionist.

LifeNews carries an objection from an activist with Operation Rescue:

“I am shocked that these counts have been dismissed. I have heard testimony by very credible witnesses to the effect that these babies were murdered in cold blood by Gosnell as they cried and struggled for life. We pray that justice will be done in the remaining five victims of Gosnell’s horrific slayings,” said Cheryl Sullenger, Senior Policy Advisor for Operation Rescue, who has observed the trial and published first-hand accounts of the proceedings.

Sullenger said testimony from the medical examiner and toxicologist has indicated that there was no evidence the babies were injected with Digoxin to ensure the babies were dead prior to the abortion, as the defense has claimed.

The medical examiner testified that tests were inconclusive as proof that the babies were born alive. However, the tests also did not prove the babies were dead prior to birth. Those inconclusive test results were overshadowed by the weight of testimony from witness after witness, who detailed how the babies were in fact living prior to being murdered through what one witness described as a “virtual beheading.”

“If Gosnell gets off scot-free, that will send a message that murdering live babies and abortion patients is now acceptable behavior in America and that abortionists who engage in such depraved practices are above the law. This would put women and babies in grave danger – more than they already face – at abortion clinics throughout the nation,” said Sullenger.

Without being in the courtroom, it’s difficult to determine just how well the prosecution presented that case in the opening round of the trial.  The burden of proof for the prosecution not only involves presenting clear evidence of intent to murder (or gross neglect amounting to intent), but also that an actual murder took place.  The judge has the responsibility to dismiss charges where the prosecution hasn’t presented enough evidence to allow a jury to consider guilt beyond a reasonable doubt.

The fact that Minehart allowed more than half of the charges to remain — and corrected the record expeditiously on which specific charges remain — tend to demonstrate that he’s taking that responsibility seriously.  The case will continue, and the jury will have the chance to deliver a verdict on Gosnell’s operation.

Update: And that chance may come a lot sooner than we thought. The intrepid JD Mullane just tweeted:

Wow. It seems that McMahon either thinks that all of the highly shocking testimony had no impact on the jury, or he doesn’t have a real defense against it.

Update: If the judge sent the jury out until Monday, he at least has some time to see if McMahon wants to reconsider.  With all of the very powerful testimony about the neck-snipping and conditions in the clinic, it seems almost incomprehensible to me that an attorney would roll the dice on getting a jury to dispassionately dispense with the charges.

Update: Commenter Resist We Much offers this analysis of McMahon’s strategy:

Three possibilities:

1. He believes that he proved Gosnell’s innocence during the prosecution’s case-in-chief via cross-examination; or

2. He believes the jury is likely to convict and instead of putting on a case that might inflame and lead them to impose the death sentence (even though there is a separate sentencing ‘trial’); or

3. He thinks conviction is likely and is setting up an ineffectiveness of counsel appellate issue for his client.

As I noted above, he is charged with far more than first-degree murder. He is also on trial for infanticide (different charge than FDM), violating PA’s Controlled Substances Act, PA’s Abortion Control Act, fraud and conspiracy relative to narcotic distribution, tampering with evidence, corrupt organisation (PA’s version of the RICO Act), etc. His wife, Pearl, has already pleaded guilty to performing illegal abortions, corrupt organisation, and criminal conspiracy – all felonies.

I think those three strategies cover all the rational possibilities for McMahon’s strategic decision, and #1 is almost certainly not the case.  My first inclination is to lean toward #3, which may be the reason why Judge Minehart has sent the jury out for the rest of the week; he might want to get McMahon on record explaining this decision and minimize the danger of getting a verdict tossed by an appellate court later.  I think, though, that McMahon may be thinking along the lines of #2, and having failed to get the judge to toss out all of the murder counts, is now trying to do his best to salvage whatever leeway exists with the jury for the sentencing.

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Anyone who isn’t disgusted by this evil pig Gosnell is pure trash and not worth your time.

bluegill on April 25, 2013 at 5:25 AM

Will there be no closing arguments?

Queen0fCups on April 25, 2013 at 9:16 AM

So my guess is with the Gosnell attorneys is that they realize they have no defense for what he did. He was obviously in his right mind(as much as that’s possible) when he did what he’s accused of. And the witness testimony and physical evidence is too damning. At this point they’re likely resigning themselves to accepting a guilty verdict, but trying to save him from getting the death penalty.

Doughboy on April 24, 2013 at 1:52 PM

That was my thinking as well… what credible witness could they possibly produce, and what legitimate reason could they possibly give?

Also, do we know if any of those babies were actually given those drugs to kill them prior to delivery? He was so cheap and murderous, I bet he didn’t. Or if he did, they were probably underdosed.

Queen0fCups on April 25, 2013 at 9:29 AM

I know my comment is coming in at the end, but I wanted to think this through a bit before submitting.

It is conventional, in criminal trials in many jurisdictions under the Anglo-American system, that defence counsel seek a non-suit of the prosecuton’s case at the close of the prosecution’s case and before the beginning of the defence. At that point the argument is essentially that there has not been sufficient evidence adduced on each essential element of the charge so that, even if all the evidence were to be accepted by the jury, a properly instructed jury could convict. It is very similar to the test to be applied on a preliminary hearing. Credibility is not to be taken into account.

In the case at hand, for example, the judge obviously concluded that there was no evidence on some essential element of the 3 murder charges he dismissed. At the moment I have no idea what they were. (Also, the test varies from jurisdiction to jurisdiction…there are 50 state jurisdiction in the US, a Canadian jurisdiction, and perhaps a US Federal criminal jurisdiction, depending upon how some federal offences are characterized. So, the foregoing comments are approximations of what the law likely is in Pa., but fine details are for Pa. layers to explain)

A second point is that in many Anglo-American type jurisdictions if the defence calls no evidence, then they have the right to make the last submission…that is, the prosecution must go first. I do not know if this is the procedure in Pa. criminal procedure, but if so it can be remembered that a lot of lawyers consider it a big advantage to get the last word.

It is still a big risk to call no evidence just so as to get the last word on submissions so I think there is more at play here.

First, in following the little reporting of the case there was, it did not seem that the defence challenged the credibility of the prosecution witnesses to any great extent. I know there were some cross-examinations in which McMahon was able to extricate some admissions from the witnesses but to a large extent he would have needed those witnesses to maintain their credibility if those admissions were to have any value.

Second, in the face of the evidence presented, there may have been little evidence that Gosnell’s lawyer could have advanced to refute the prosecution’s case.

Third, the demeanour of Gosnell, as described by some reporters, seemed to me to be one of great confidence. I think there was a concern that he would come across as cocky to the jury…in the face of the horrific evidence in front of them a cocky, seemingly unrepentant accused would not be likely to sway the jury to the defence side…and could make it worse.

So where does that leave us? Gosnell has the right to decide if he testifies, and has taken a great risk in not doing so…the jurors absolutely want to hear from him in the face of the horrendous accusations and evidence they have heard. One would think that declining to answer the accusations would be seen by the jury as an admission of guilt (regardless of any warning they receive from ther Judge to not do so as the accused has an absolute right to remain silent).

So the defence must think that, on the evidence as it sits, they can succeed in one of two ways. One, they must think they can get acquittals on one or more charges from the jury. Secondly, even failing to get acquittals from the jury, they may be banking on winning at the appeal court level. On this point I suggest reading the Weekly Standard article posted here (Hot Air) last week called “Barbarism in Philadelphia: The Crimes of Kermit Gosnell” by Jon A. Sheilds. In that piece Sheilds sets out a legal theory which Gosnell’s lawyer may seek to apply to get his client off. It’s ugly, but who knows?

Anyway, that is one former practitioner’s (albeit Canadian) analysis of what may be going on. If anyone reads this I would be very interested in your comments.

Blaise on April 25, 2013 at 11:58 AM

Blaise on April 25, 2013 at 11:58 AM

I agree with much of what you said. While I am not licenced to practise in PA and am unfamiliar with the specifics of PA RCP, in most jurisdictions in the US, the order of closing arguments is not based on whether the defence has presented a case. The prosecution opens, followed by the defence, and then the prosecution has a final rebuttal argument. The reason for this is that the burden of proof is on the state and, thus, the reasoning goes, it should have the final word. This format applies in both criminal and civil cases.

My thinking at this point is that McMahon is probably trying to keep his client from getting the death penalty although just beating the first-degree murder charges might also be a consideration. Remember that, even if acquitted on the murder charges, he is unlikely to walk out of the courtroom a free man because of the plethora of other charges for which there was overwhelming evidence. I doubt the jury was informed because of its prejudicial nature, but Gosnell’s wife has already pleaded guilty to various felonies, including performing illegal abortions (after 24 weeks) and corrupt organisation. He’s been charged with those offences, as well. Furthermore, many of the prosecution’s witnesses have already pleaded guilty to various felonies, including multiple counts of third-degree murder. So, I would bet on guilty verdicts on some counts, at least. If he is acquitted on the FDM charges and convicted on other charges, he can probably get out on bond pending appeal. He’s also 72, which means he might be looking at running out the clock.

As you said, he affects a cocksure attitude, which would likely be a turn-off. There is something else about Gosnell that hasn’t been raised very much. This case is being heard in downtown Philadelphia, which means that the jury probably has many minorities on it, if not a majority of minorities. Ordinarily, this would likely work in Gosnell’s favour, BUT there was testimony about his segregated waiting rooms. White women got the ‘immaculate’ waiting room with cable and Dr Gosnell’s personal service. Minority women were given the disgusting waiting room and treated by staff – none of whom was a licenced medical provider and one was a teenager. The shocking contempt and disregard that Dr Gosnell had for minority women and their health could hardly endear him to the jury, especially the minorities on it, who would probably feel personally offended. (I would).

I haven’t read the WS article, but I will. Thanks.

Resist We Much on April 25, 2013 at 12:49 PM

Wonder if obama will come to his defense, HE promotes late term and after birth murder.

StevC on April 25, 2013 at 5:07 PM

Resist We Much on April 25, 2013 at 12:49 PM

Thanks for the insight, particularly on the order of presentation of final submissions.

Cheers

Blaise on April 25, 2013 at 5:57 PM

Update: Commenter Resist We Much offers this analysis of McMahon’s strategy:

Three possibilities:

1. He believes that he proved Gosnell’s innocence during the prosecution’s case-in-chief via cross-examination; or

2. He believes the jury is likely to convict and instead of putting on a case that might inflame and lead them to impose the death sentence (even though there is a separate sentencing ‘trial’); or

3. He thinks conviction is likely and is setting up an ineffectiveness of counsel appellate issue for his client.

As I noted above, he is charged with far more than first-degree murder. He is also on trial for infanticide (different charge than FDM), violating PA’s Controlled Substances Act, PA’s Abortion Control Act, fraud and conspiracy relative to narcotic distribution, tampering with evidence, corrupt organisation (PA’s version of the RICO Act), etc. His wife, Pearl, has already pleaded guilty to performing illegal abortions, corrupt organisation, and criminal conspiracy – all felonies.

I think those three strategies cover all the rational possibilities for McMahon’s strategic decision, and #1 is almost certainly not the case. My first inclination is to lean toward #3, which may be the reason why Judge Minehart has sent the jury out for the rest of the week; he might want to get McMahon on record explaining this decision and minimize the danger of getting a verdict tossed by an appellate court later. I think, though, that McMahon may be thinking along the lines of #2, and having failed to get the judge to toss out all of the murder counts, is now trying to do his best to salvage whatever leeway exists with the jury for the sentencing.

This analysis is so wrong in so many ways. Please consult with an actual experienced and practicing criminal trial attorney to explain what’s happening in this trial and why.

bigbeas on April 26, 2013 at 4:40 AM

Although a good analysis was presented by Resist We Much (and then highlighted by Ed), there is a distinct 4th possibility. This is what I think the defense is counting on, and this is also what I think is going to happen.

During the seating of a jury, attorneys on both sides try to vet potential jurors to get a jury more likely to favor their side. In this specific case, that had to include the question of where the potential juror stood on the question of abortion.

With this in mind, there is no way the prosecution managed to get 12 staunchly pro-life jurors. Given the location of the trial (and therefore the pool to choose from), I would expect it to be less than half.

Since it only takes one pro-abortion juror to vote not guilty, and to stick to that position no matter what evidence is presented (in order to save their party’s most beloved sacrament), I submit that there is at least one such juror on this panel. Probably more like 3 or 4. The best that will happen is a hung jury, no matter how many times they try this case. I offer as evidence both the OJ Simpson trial (only need one black juror to refuse to convict regardless of the overwhelming evidence) and the Scooter Libby trial (years of Bush bashing biasing any jury that could possibly be assembled in DC).

This animal is going to walk.

runawayyyy on April 26, 2013 at 11:43 AM

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