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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