PHILADELPHIA — For five weeks, jurors have heard one witness after another tell of beheaded babies, snipped spines, and a filthy clinic.
They have seen color photos of aborted fetuses – some as old as seven months, others allegedly born breathing and moving – and sat just feet an array of aged equipment from the West Philadelphia abortion clinic of Kermit Gosnell.
Overcoming this pile of evidence may seem insurmountable, but that is the job defense attorney Jack McMahon begins Monday.
Gosnell, 72, is charged with seven counts of first-degree murder – seven babies prosecutors say were born alive and viable and killed by Gosnell.
If the Philadelphia Common Pleas Court jury of seven women and five men finds Gosnell guilty of any of those seven counts, it would begin hearing evidence to decide if the doctor should be put to death or serve life in prison with no chance of parole.
Beyond the individuals involved, Gosnell’s trial has become a soapbox for a variety of causes.
Anti-abortion activists cite it as the ultimate impact of legalized abortion. Supporters of a woman’s right to have an abortion say opponents have seized on an aberrant example to undermine the 1973 U.S. Supreme Court decision that recognized the right to abortion.
The race card has been played by all. The Philadelphia grand jury and prosecutors called racist the decade-long failure of state health officials to inspect an inner-city clinic that largely served poor, black women. McMahon has called the prosecution racist and elitist for the same reason. And black anti-abortion activists have called Gosnell a “racist of the worst kind” for “preying on girls and women of his own race.”
Conservative media critics lambasted the national “liberal mainstream media” for failing to cover the story and last week triggered a flurry of coverage at what had been a courtroom almost devoid of journalists and spectators.
It is not known if Gosnell will testify. But given his past behavior, it would not be a surprise if he does.
From his first court appearance in February 2009, Gosnell has maintained an amiable, courtly demeanor that belies his precarious legal situation and the anger of some antiabortion partisans who have attended his trial.
Gosnell has rejected several plea deals from prosecutors, the last before jury selection started March 4. The offer would have let Gosnell serve life in a federal prison rather than in the Pennsylvania system, and let his wife, Pearl, 52, keep their West Philadelphia home.
A former homicide prosecutor who once worked with Cameron and Judge Jeffrey P. Minehart – now presiding over Gosnell’s trial – McMahon, 60, is a tough advocate whose speech is staccato and rapid-fire and his temper short.
In many ways, McMahon has already begun his defense. In his opening and questioning of prosecution witnesses, he has tried to give jurors an alternate way to view the evidence.
In the first-degree murder charges, for example, McMahon has argued that even in abortions in which a fetus was born breathing or moving – in one case “screeching” – it was already doomed.
The reason is the technique adopted by some late-term abortion providers after 2007, when the Supreme Court upheld Congress’ ban on procedures called “partial-birth abortions” by opponents.
According to testimony, the technique involved a fatal injection of the heart drug Digoxin, or potassium chloride, into the fetus or sac of amniotic fluid. After the fetus is dead, the doctor removes the remains from the womb.
“You can’t kill something that’s already dead,” McMahon argued.
Gosnell is also charged with third-degree murder in the Nov. 19, 2009, death of abortion patient Karnamaya Mongar.
Prosecutors allege that Mongar, 41, of Virginia, was given too much Demerol, the drug used to anesthetize her, by Gosnell’s untrained staff.
McMahon has argued that Mongar was a fluke, the only Gosnell patient who died among thousands who had abortions in the clinic’s 31 years.
McMahon has also argued that Mongar, a Bhutan immigrant who lived 20 years in an Asian refugee camp, did not disclose lung problems that might have made her more vulnerable to anesthesia. That theory was rejected by pathologists who performed an autopsy on her.
More problematic for the defense may be testimony of former employees and patients about unsanitary conditions in the clinic.
Questioning workers, McMahon tried to spread the blame by eliciting admissions from each that “you did your best” to keep the clinic clean and sanitary. But one employee said the clinic was so dirty she had her own abortion elsewhere. And a patient testified that conditions made her go to her own doctor for follow-up after taking an abortion pill from Gosnell’s staff.
There are also more than a score of charges involving abortions that, based on clinic records, were done after 24 weeks, when abortions in Pennsylvania are illegal.
Almost forgotten is the other person on trial with Gosnell: Eileen O’Neill, 56, of Phoenixville, an unlicensed medical school graduate who worked in the family-practice section of Gosnell’s clinic.
O’Neill is accused of conspiring in the operation of a “corrupt organization.”
O’Neill’s defense began Thursday when attorney James Berardinelli was allowed to call a first witness out of turn.
Natalie Tursi, a friend of O’Neill and her brother, testified that O’Neill went to work for Gosnell, part time at $400 a month, because Gosnell promised to help her get a Pennsylvania medical license.
Tursi said O’Neill was angry because Gosnell was not keeping his promise.
“Eileen was very intelligent, but she was not very street-smart,” Tursi said. “She didn’t have commonsense smarts.”