Three of eight murder charges against a Philadelphia abortion provider were thrown out Tuesday, apparently because the judge had not heard sufficient evidence of the prosecution’s allegations 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. The judge also upheld murder charges in a patient’s overdose death.
Prosecutors have argued that the babies were viable and Gosnell and his staff cut them in the back of the neck to kill them.
Common Pleas Judge Jeffrey Minehart did not explain his reasoning for the split decision on the defense motion to acquit Gosnell after five weeks of prosecution testimony. Such requests are routine but rarely granted.
The defense questioned testimony from staffers who said they had seen babies move, cry or breathe. Defense attorney Jack McMahon argued that each testified to seeing only a single movement or breath.
“There is not one piece — not one — of objective, scientific evidence that anyone was born alive,” McMahon said. “These are not the movements of a live child.”
The trial was set to resume Tuesday afternoon with defense witnesses 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.
Gosnell must defend a third-degree murder charge for the 2009 overdose death of 41-year-old Karnamaya Mongar, a recent refugee to the U.S. who died after an abortion.
McMahon argued that third-degree requires malice, or “conscious disregard” for her particular life.
