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May 13, 2013

After three PA murder convictions, which form of LWOP will abortion doctor get?

The question in the title of this post is my reaction to the notable state criminal trial verdicts in a high-profile case reported in this new New York Times article.  Here are the conviction and sentencing basics:

Dr. Kermit Gosnell, a West Philadelphia doctor known for performing late-term abortions, was found guilty on Monday on three of four counts of first-degree murder.

The verdict came after a five-week trial in which the prosecution and the defense battled over whether the fetuses Dr. Gosnell was charged with killing were alive when they were removed from their mothers.  Prosecutors have said they will seek the death penalty when the trial moves into the sentencing phase on May 21....

The jury of eight women and four men acquitted Dr. Gosnell of one first-degree murder charge involving an aborted fetus.  He was also acquitted of third-degree murder in the death of a 41-year-old patient but was found guilty of a lesser charge of involuntary manslaughter in that case.

The gruesome nature of the crimes that Dr. Gosnell was accused of and the squalid conditions in his clinic had fueled arguments on both sides of the abortion debate. Anti-abortion campaigners used the case to reinforce their argument that the practice is immoral, while abortion rights advocates warned that it underlined the need to ensure the availability of properly regulated abortions....

Prosecutors had argued that Dr. Gosnell murdered seven late-term infants who would have survived if he or his assistants had not given them a drug designed to cause “fetal demise” and then plunged scissors into their necks to ensure that they were dead. But the prosecution suffered a setback last month when Judge Jeffrey P. Minehart threw out three of the seven first-degree murder charges without giving a reason.  That left Dr. Gosnell facing four charges of first-degree murder, as well as one charge of third-degree murder in connection with the death of the patient.

In defense arguments, Mr. McMahon argued that there was no evidence that any of the fetuses were born alive and that his client was therefore not guilty on any of the murder counts.  He also told jurors that the death of the patient, a refugee from Bhutan, was due to existing medical problems and not to an overdose of an anesthetic administered by Dr. Gosnell’s unlicensed assistants, as prosecutors had said....

Mr. McMahon declined to say whether he would appeal or how he intends to keep his client off death row....

Clinic workers who appeared as witnesses for the prosecution said some of the fetuses appeared to move or make noises.  One, known as Baby D, was delivered into a toilet and appeared to make swimming motions before one of Dr. Gosnell’s assistants cut its neck, according to a worker cited during closing arguments by Edward Cameron, an assistant district attorney.

Mr. Cameron and another assistant district attorney, Joanne Pescatore, also told the jury that Dr. Gosnell kept the severed feet of aborted fetuses in dozens of jars around his clinic, the Women’s Medical Society in West Philadelphia.

According to a January 2011 grand jury report, Dr. Gosnell’s patients were covered with bloodstained blankets, treated with unsterilized instruments and surrounded by cats that were allowed to defecate in the building.  To bolster their argument that Dr. Gosnell subjected his patients to filthy and dangerous conditions, prosecutors presented the jury with a dirty procedure table and a stained ultrasound probe.

The question in the title of this post reflects the current reality that all death sentences in Pennsylvania are functional LWOP sentences in the modern era. Through there are over 200 murderers now on Pennsylvania's death row, the state over the last 40+ years the state has only executed three defendants who waived all of their appeals.

Because Gosnell is already 72 years old, it seems very unlikely that all Gosnell's appeals of any death sentence would be completed and the PA execution back-log cleared before Gosnell dies in prison of "natural causes." (Indeed, even if Pennsylvania started ASAP to execute 10 condemned prisoners each year, it would take until 2034 to carry out just existing death sentences.)

So, whether formally or functionally, Gosnell is all but certain now to serve an LWOP sentence.  Still, apparently seeking a symbolic victory, PA prosecutors apparently plan to invest a lot of money and energy trying to ensure Gosnell serves this sentence on death row rather than elsewhere.

May 13, 2013 at 07:43 PM | Permalink


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!! "Judge Jeffrey P. Minehart threw out three of the seven first-degree murder charges
without giving a reason." !!

Wasn't the judge merely inventing a right and setting his own precedent a la Roe v. Wade?

Posted by: Adamakis | May 13, 2013 10:24:00 PM

Suggested Harvard Law School Crim Law I exam question. Take home. Open book. Return in 8 hours.

1) Analyze the legal distinction between these three fact patterns: a) a legal third term abortion in which a doctor dismembers a baby like fetus in utero, and the bits and pieces are extruded or evacuated by powerful vacuum pumps; 2) a kidnapper starves and boxes the abdomen of his pregnant captive until she miscarries a non-viable fetus; 3) a doctor carries out the dismemberment or coup de grace on the fetus outside the uterus. Assume the women in scenarios 1) and 3) are at the same week of pregnancy.

2) If any of the above defendants are convicted of murder, discuss any basis for appeal, including a violation of Roe v Wade plus subsequent decisions. Please discuss such appeals in light of the Anti-injunction Act, and the decision in Younger v Harris, their exceptions, and the exceptions to the exceptions.

3) At the policy level, if any of the above convictions are upheld by the Supreme Court, discuss the effect on providers of abortions, especially in the third trimester.

Posted by: Supremacy Claus | May 13, 2013 11:43:59 PM

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