Kermit Gosnell’s Defense: Case Is an “Elitist, Racist Prosecution”
The gag order put on the case two years ago has prevented the truth from coming out about Kermit Gosnell: That’s the argument Gosnell’s lawyer Jack McMahon opened with this morning at the criminal justice center in Philadelphia.
Gosnell is the 72-year-old doctor charged with murdering a 41-year-old Bhutanese emigrant named Karnamaya Mongar and seven nameless babies in a West Philly abortion clinic that went without state inspection for years while allegedly providing abhorrently substandard care.
According to McMahon, however, there simply was no “house of horrors,” as alleged in the grand jury report and media; the defending attorney spat out that phrase with theatrical disgust. Rather, McMahon — a distinct-looking character with a jaw set like a bulldog and a bald freckled head that works up to a shade of crimson while passionately making his case — tried to recast the alleged murderer as an imperfect doctor dedicated to serving poor people in his “urban” community.
After reminding jurors about the legal presumption of innocence, McMahon revealed his main theme: Gosnell, he said, a black man, is a victim of an “elitist, racist prosecution.”
The majority of the jurors are black.
It’s a strange twist in an already puzzling case, and a particularly interesting argument for McMahon to make, given his role in a past scandal centered on selecting jurors based on race. In 1997, McMahon — then a prosecutor — unsuccessfully challenged former D.A. Lynne Abraham for District Attorney. Shortly after he announced his candidacy, a controversial video surfaced wherein he was seen teaching lawyers questionable techniques for gaming the jury-selection process by using race as a criterion.
“The blacks from the low-income areas are less likely to convict,” McMahon said in the video. “I understand it. It’s an understandable proposition. There’s a resentment for law enforcement. There’s a resentment for authority. And as a result, you don’t want those people on your jury.”
Aside from McMahon’s history, racism makes a doubly ironic argument for the defense to deploy given the role race played in Gosnell’s clinic operations, according to a former employee interviewed by the grand jury in 2010.
Forty-five-year-old Tina Baldwin, who’ll be a witness for the prosecution, testified to the grand jury that a separate room in the clinic was reserved for white women only, and that while untrained staff were free to administer drugs to brown and black women without supervision, Gosnell insisted on being personally briefed on the status of white patients. “The … black population was … big here,” Baldwin told the grand jury. “So he didn’t mind you medicating your African-American girls, your Indian girl, but if you had a white girl from the suburbs, oh, you better not medicate her. You better wait until he go in and talk to her first.”
McMahon argued that the grand jury report was a “not valid” version of events. He said that when Gosnell earned his MD back in 1969, the young doctor rejected offers to join lucrative OB/GYN practices in New York City or Washington, DC in order to serve the mostly low-income residents of Mantua, a neighborhood in West Philadelphia: “He was dedicated to the poor.”
McMahon also said that the complication rate for abortions at Gosnell’s clinic was “1 in 400,” though it’s unclear where that statistic came from, given that the grand jury report alleged that Gosnell routinely fudged his records, that no outside entity inspected the clinic for years, and that local medical providers who fixed the clinic’s botched procedures and infections from dirty tools failed to report to the state.
Some former patients of Gosnell’s will take the stand in defense of the doctor. “Take the patients’ word for it!” McMahon implored jurors.
Perhaps, he said, jurors would conclude that all the clinic’s equipment was not up to date, and that they themselves would not like to have been patients there. “Maybe he’s not the best doctor,” McMahon granted. But he asked jurors to remember this was a clinic operating not in the “ivory tower,” but in the “nitty-gritty of West Philadelphia.”
He said: “[This is a] elitist, racist prosecution! That’s what it is! This black man is being [tried] because of who he is and where he works!”
McMahon then detailed explanations for all of the main charges against Gosnell.
First there’s the charge of homicide in Mongar’s death inside the clinic. The defense intends to prove that Mongar was suffering from bronchial problems when she traveled from Virginia to Philadelphia to obtain an abortion 19 weeks into a pregnancy. The defense will argue that Mongar died because neither she nor her family informed Gosnell’s staff of her condition and other medications, possibly including medicine intended to treat tuberculosis, which McMahon speculated she had taken in an effort to self-abort. Neither Mongar nor her escort to the clinic spoke any English.
“Every time a doctor makes a mistake, it isn’t murder,” McMahon said.
McMahon also revealed that the medical examiner initially ruled Mongar’s death an accident, then later changed it to a homicide without introducing new evidence to explain the change.
Next McMahon addressed the seven infant murder charges. For five of those seven babies, he claimed, there is no scientific proof that they were ever born alive except for the statements of untrained staff who said they saw movement or heard breathing.
That leaves the two babies designated Baby A and Baby B.
As for Baby A, the one so large that according to grand jury testimony Gosnell joked he was big enough to “walk him to the bus stop,” McMahon intends to prove that the fetus was injected with a chemical that killed it in utero.
Baby B, the defense will argue, also never breathed air. McMahon said that the routine way to test if a baby ever breathed entails removing the lungs from the body and dropping them into a basin of water. If the lungs are aerated — if the baby drew breath — then the lungs will float. “It sunk,” he said. “That baby fetus never lived.”
As for the 47 fetuses found in jugs and kitty litter containers and packed into the freezer on the day the clinic was raided in 2010, McMahon says that they were there because Gosnell was having a dispute with his hazmat service provider.
To burnish his strategy as one of cold, hard science, he contrasted it with opening arguments made for the Commonwealth by ADA Joanne Pescatore, referring to her argument as “emotional.”
In his final statement, McMahon declared the trial a “prosecutorial lynching.”
Gosnell has also been indicted by the federal government on drug trafficking charges.