Three of eight murder charges were thrown out Tuesday against a disgraced Philadelphia abortion provider, 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.
Prosecutors might concede that point themselves at closings, and argue that patients were routinely exposed to unsanitary, intentionally reckless conditions at the clinic.
The judge upheld murder charges against Gosnell in the overdose death of Karnamaya Mongar, left,who died in 2009 after seeking an abortion
Former staffers have testified that patients received heavy sedatives and painkillers from untrained workers while Gosnell was offsite, and were then left in waiting rooms for hours, often unattended, before Gosnell arrived for the late-night surgeries.
Despite that, the workers testified that they had never seen a woman go into distress before Mongar.
Yet a 2011 grand jury report alleges that dozens of women were injured at Gosnell's clinic over the past 30 years, calling it a ‘house of horrors.’
Some left with torn wombs or bowels, some with venereal disease contracted through the reuse of non-sterilized equipment, and some left with fetal remains still inside them, the report alleged.
And the report blamed Gosnell for an earlier maternal death that was not charged.
Assistant District Attorney Ed Cameron, in defending the Mongar charge, said it stemmed from the totality of the circumstances at Gosnell's clinic.
They included the repeated medication dosages given by medical assistants; the doctor's absence during most of her two-day visit; and the hour it took to open a locked side door and take her by stretcher to an ambulance.
And the prosecutor questioned why else Gosnell and his staff would "snip" babies if they were not born alive. The brains were intact, so it was not done to make the delivery easier, he said.
‘Why would you cut a baby in the back of the neck unless you were killing it?’ Cameron argued.
Gosnell had also been charged with five counts of abuse of a corpse, for removing the feet from aborted fetuses and storing them in specimen jars. McMahon argued that his client did so to keep DNA samples, and Minehart agreed to dismiss those counts.
Charged: Dr. Kermit Gosnell, a Philadelphia abortion doctor, is accused of killing seven babies that were born alive
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.
Last week, a medical assistant told a jury that she saw one late-term baby who survived an abortion 'swimming' in a toilet 'trying to get out.'
Kareema Cross also claimed she saw the spines of at least 10 babies snipped using scissors during unorthodox late-term abortions at a West Philadelphia clinic.
Her revelations came in the last day of testimony before the prosecution rested in the capital murder trial of Dr. Gosnell.
In the final day of testimony before the prosecution rests Kareema Cross, a 'medical assistant' who worked at Gosnell’s Women’s Medical Society clinic for more than four years testified in a Philadelphia court room yesterday, CNSNews reported .
She spoke of the horror of witnessing babies who had survived abortions only to have their necks snipped in two using scissors.
'Did you ever see those babies move?' asked Prosecutor Joanne Pescatore.
'Yes, once in the toilet,' said Cross. The baby 'was like swimming,' she said. 'Basically, trying to get out.'
Other employees at the clinic also confirmed that babies were often expelled from their mothers into the toilet.
On at least one occasion the toilet had to be removed from the floor to 'get the fetuses out of the pipes.'
The doctor: Kermit Gosnell
Charged: Pearl Gosnell
Employee: Elizabeth Hampton
Arrested: Tina Baldwin
Assistant: Lynda Williams
Worker: Adrine Moton
Accomplice: Eileen O'Neil
Mugshot: Sherry West
Held: Maddline Joe
Many pregnant women were given drugs to induce labor.
Cross, who worked at the clinic from 2005 to 2009, was so disturbed by its operation that she took photos and called authorities, although she gave a relative's name.
In 2007, Cross herself became pregnant and wanted to have an abortion but decided to not have the procedure at the clinic, citing the unsanitary conditions.
Employee Latosha Lewis said 'one or two babies fell out of patients each night. They dropped on lounge chairs, on the floor, and often in the toilet.'
'If a baby was about to come out, I would take the woman to the bathroom, they would sit on the toilet and basically the baby would fall out and it would be in the toilet and I would be rubbing her back and trying to calm her down for two, three, four hours until Dr. Gosnell comes,” Lewis told the grand jury.
Gosnell preferred to have the babies fall out of their mother because 'it made his job easier,' according to a Grand Jury report.
The report goes on to state: 'If fetuses had not precipitated, Gosnell would often have his staff physically push them out of their mothers by pressing in the mother’s abdomens.'
The 2011 grand jury report blasts state and city officials for failing to inspect or shutter Gosnell's busy clinic in West Philadelphia.
The 300-page grand jury report, that initially laid out the charges against Gosnell, details the appalling conditions of the West Philadelphia clinic the doctor operated.
It was described as reeking of cat urine, with walls splattered with blood and patient rooms filled with unsanitary instruments and broken- down equipment.
The tiny fetuses and many of their bodyparts were piled high throughout Gosnell’s clinic in cabinets and freezers, in plastic bags, bottles, even cat-food containers.
Jars with severed feet lined shelves, prosecutors said. 'It was a baby charnel house,' the grand jury repor said.
House of horror: A grand jury photograph shows what police say are plastic bags hiding body parts in a refrigerator inside the Philadelphia practice
Adrienne Moton, an employee at the clinic, then took the baby and snipped the back of its neck while the mother was still in the room.
Cross explained to the jury that the largest baby she saw was when Shayquana Abrams came into the clinic in July 2008.
Dr. Gosnell took the baby boy, which was described as around 12 to 18 inches long, and placed him into a plastic box about the size of a shoebox.
'The baby was still breathing, he didn’t cut the neck right there.' he said.
'I called people over to come see it and we took pictures,' she said.
The baby boy was in the fetal position and was laying on his side in the box.
The image of the baby taken by Cross was shown to the court.
She added that baby was supposed to be placed into a freezer but was still laying on the table the next day.
Gosnell later joked that the baby was so big he could have walked to the bus stop.
'Filthy': Investigators say Gosnell's clinic, the Women's Medical Society, catered to minorities, immigrants and poor women. It was also allegedly the site of unimaginable filth
Shayquana Abrams was 17 when she went to the Women’s Medical Society for a late-term abortion on July, 12, 2008.
Earlier in the trial, Abrams testified that she was 29 weeks pregnant.
Abortions after 24 weeks are illegal in Pennsylvania.
Cross also testified that she witnessed Steven Massof, an unlicensed medical school graduate, snip babies necks 25 to 30 times and sometimes removed the brain through the opening.
Dr. Gosnell would cut the back of their necks with scissors, she said, but the doctor would simply announce the babies were not breathing.
Cross has pleaded guilty to federal drug charges for administering medications at the clinic, and hopes to get probation for her cooperation.
Scene: A police car is seen outside the the Women's Medical Society in 2011 following Gosnell's arrest
Cross took photos of the clinic in 2008 because she had concerns.
Other photos shown in court depicted more than 50 jars filled with baby's feet.
Other pictures showed the clinic's cat roaming freely around the place including supposedly sterile procedure room along with the bathroom on the first and second floors.
Equipment in the clinic was also covered in blood.
The trial of Gosnell is currently in its fifth week. He is charged with, among other crimes, the first-degree murder of seven babies who had been born alive during abortions and then killed after their spinal cords had been snipped.
The defense has denied that babies were born alive and will begin its case on Monday.