PHILADELPHIA A Pennsylvania judge dismissed three murder charges on Tuesday against a Philadelphia abortion doctor accused in a high-profile case of killing babies in what was described as a squalid clinic serving low-income women.
Dr. Kermit Gosnell, 72, still faces charges of killing four infants and a woman who underwent an abortion and died at a nearby hospital after the procedure at his Women's Medical Society clinic in urban West Philadelphia. He could face the death penalty if convicted.
Common Pleas Court Judge Jeffrey Minehart dismissed three of the murder charges after Gosnell's attorney argued that the prosecution failed to present evidence that the infants had been born alive.
"That is one of the elements (of murder) that the baby is born alive," defense attorney Jack McMahon said.
He said evidence that the prosecution presented that suggested signs of life in some of the infants after the abortions did not in fact show that the infants were alive. He said testimony that one infant moved a leg "are not the movements of a live child."
The judge offered no explanation for his rulings, which came on the first day of the defense portion of the case.
Prosecutors say Gosnell severed infants' spinal cords after the abortion procedures. They also contend that one patient, Karnamaya Monger, 41, died of an overdose of anesthetics prescribed by Gosnell.
McMahon did not ask that charges in Monger's death be dismissed, but said the charge should be reduced to manslaughter, rather than the third-degree murder charge Gosnell now faces. Minehart did not rule on that request.
McMahon had argued that all seven murder charges involving infants should be dismissed. He also said the law required prosecutors to prove that Gosnell showed a callous disregard for Monger's life to be convicted of murder in that case, and maintained she had received the same medications as other patients.
"How can that be malice? How can that be callous disregard?" he asked.
Gosnell has been in jail since he was charged in January 2011 after a grand jury probe. He originally faced 23 charges, but Minehart on Tuesday also dismissed five charges of abuse of a corpse, and one charge of infanticide.
The trial has rekindled debate in the United States about late-term abortions and has attracted many spectators from anti-abortion groups. Under Pennsylvania law, abortions can be performed up to 24 weeks.
(Editing by Barbara Goldberg, Cynthia Johnston, Maureen Bavdek and Dan Grebler)