April 29, 2013

"You have a choice, a real choice... to roll with the tsunami of simplistic press and rhetoric..."

"... or the choice to stand against the power of that tsunami," said Jack McMahon, delivering the closing argument for Kermit Gosnell.

He also called the case "the most extraordinary hype and exaggeration in the history of the justice system," which is itself an extraordinary exaggeration.

It's hard to find a good account of what McMahon's argument really was. The NYT article gives a better hint at the legal substance of it:
The doctor’s defense lawyer, Jack J. McMahon, argued Monday that none of the remaining four cases had resulted in live births. Because the women were given injections of the drug digoxin, which causes “fetal demise,” Mr. McMahon argued, any postdelivery movements were involuntary spasms.

“Every single piece of scientific evidence in this case has shown stillbirth,” he said.

But Edward Cameron, an assistant district attorney, countered that testimony showed Dr. Gosnell did not always use digoxin and that it did not always work as intended. He quoted a former clinic worker with medical school training but no doctor’s license who testified that the drug “wasn’t giving the desired effect, the heart was always beating.” The prosecutor cited Pennsylvania law stating that if a baby delivered during an abortion “shows any sign of life, it’s considered alive — a heartbeat, breathing, a cry, movement.”

48 comments:

mccullough said...

No explanation for the feet in jars.

Æthelflæd said...

He killed them with poison, so he can't be guilty of stabbing them in the back of the neck.

Ann Althouse said...

"No explanation for the feet in jars."

Could you find a transcript of the closing argument?

Ann Althouse said...

"He killed them with poison, so he can't be guilty of stabbing them in the back of the neck."

It's not murder to do something to a dead body that would kill a live body.

There's the larger argument about abortion that would have us ask why it makes a difference whether the baby is inside the mother or out, but this is a criminal trial, and he has to be convicted under the law.

Æthelflæd said...

I understand all that. I am concerned with the moral craziness that has driven us to having this be a legitimate defense. "I killed him three inches before you say I did, so I am not guilty" is an assault on all reason, sanity, and humanity.

Revenant said...

The defense is using the argument I expected. I predict a hung jury.

EMD said...

Titus is hoping for a well-hung jury.

Richard Dolan said...

A defense summation is often hard to frame, and harder still when the defense has nothing substantive to say. But defense counsel never fails to come up with something to say before the case goes to the jury.

In this trial there was no defense case, and the prosecution called a string of former clinic workers to detail the gruesome goings-on under Gosnell. Juries aren't often persuaded by arguments asking them to ignore such vivid testimony.

Richard Dolan said...
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Richard Dolan said...
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Richard Dolan said...
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Revenant said...

"I killed him three inches before you say I did, so I am not guilty" is an assault on all reason, sanity, and humanity.

If you don't have a specific line separating "legal" from "illegal" you don't have a legal system. You just have the subjective opinions of a bunch of judges, lawyers and jurors.

bpm4532 said...

If the fetus is not alive, why is it necessary to kill it? If it is alive, then doesn't it have rights?

Ann Althouse said...

Maybe cutting their necks was done to insure that they were truly dead, similar to precautions taken to avoid burying someone alive.

So many people [in the mid-19th century] became morbidly obsessed with the fear of being interred before their time that a word was coined for it: taphephobia. The novelist Wilkie Collins placed on his bedside table each night a letter bearing standing instructions of the tests he wished carried out to ensure that he really had died in his sleep if he was found in a seemingly corpselike state. Others directed that their heads be cut off or their hearts removed before burial, to put the matter comfortably (if that is the right word) beyond doubt. One author proposed the construction of “Waiting Mortuaries,” where the departed could be held for a few days to ensure they really were quite dead and not just unusually still. Another more entrepreneurial type designed a device that allowed someone awaking within a coffin to pull a cord, which opened a breathing tube for air and simultaneously set off a bell and started a flag waving at ground level. An Association for Prevention of Premature Burial was established in Britain in 1899 and an American society was formed the following year. Both societies suggested a number of exacting tests to be satisfied by attending physicians before they could safely declare a person dead—holding a hot iron against the deceased’s skin to see if it blistered was one—and several of these tests were actually incorporated into medical schools’ curricula for a time.

Bryson, Bill (2010-10-05). At Home: A Short History of Private Life (pp. 339-340). Random House, Inc.. Kindle Edition.

Æthelflæd said...

I am saying that it is an unjust law, Revenant. The defense's argument is the correct one, based on the law, I suspect. The law itself is disgusting. I don't think the jury is going to buy the claim that the babies were already dead, though. Bpm4532's has touched the thing with a needle.

AJ Lynch said...

That is why I am getting cremated Althouse.

Æthelflæd said...

If I were to pick a phobia, that would be it.

kentuckyliz said...

I'm not afraid because I saw Kill Bill.

Revenant said...

I am saying that it is an unjust law, Revenant.

One of hundreds of thousands.

Phil 3:14 said...

Maybe cutting their necks was done to insure that they were truly dead, similar to precautions taken to avoid burying someone alive.

I'm not saying this about you Professor but that phrase simply terrifies me.


As Oppenheimer said when the bomb exploded:

"I am become death, the destroyer of worlds"

Æthelflæd said...

No doubt. This is the one we are talking about right now.

Æthelflæd said...

I keep thinking about the phrase "tsunami of simplistic press". Quite the bold lie, there.

EMD said...


Maybe cutting their necks was done to insure that they were truly dead, similar to precautions taken to avoid burying someone alive.

Ha. Look at the context. Feet in fucking jars. I'm pro-choice, but this guy is a total monster who deserves the rest of his life in a forgotten hole. The release of death is too good for him.

Saint Croix said...

There's the larger argument about abortion that would have us ask why it makes a difference whether the baby is inside the mother or out, but this is a criminal trial, and he has to be convicted under the law.

It's like living in a country where it's murder to kill white people, and right to kill black people.

And we're arguing if the victim was white enough to count.

“Good gracious! anybody hurt?”

“No’m. Killed a nigger.”

“Well, it’s lucky; because sometimes people do get hurt."


Mark Twain, Huck Finn

Saint Croix said...

I predict a hung jury.

It's possible. They removed all the pro-life people from the jury pool. So the jury would be like this...

Inga
Garage
Ritmo
Revenant
Smilin' Jack
pm317
Original Mike
Ken in SC
jimbino
The Drill Sgt
Freder Frederson
Matthew Sablan

Now you have to get all 12 of these people to agree that this abortion doctor should be convicted of murder.

Inga has said that Gosnell should burn in hell. Sablan has called him a monster. Garage can't look at the photographs. Ritmo says "the horrifying and gruesome Gosnell murders." PM317 says "this is sickening and horrifying."

I really don't think an acquittal is in the cards. But a hung jury is a distinct possibility.

Saint Croix said...

As a legal matter, the defense is arguing that all these babies were poisoned in the womb, and thus they were dead when Gosnell stabbed them outside the womb.

You just can't imagine that defense working in any other context.

Your head starts spinning around. Why would you stab somebody who you already poisoned?

Answer: the poison did not work.

But that question opens the door to other questions. Why is it murder to stab the baby, but it's right to poison the baby? Why are we debating where the baby is located? Clearly the doctor wanted to kill the babies, and he did so.

And, thus, we our asking these 12 pro-choice jurors to recognize the baby's right to life, and hold the (arbitrary) line that the Supreme Court laid down in Roe v. Wade. Can they respect the baby's right to life? And can these pro-choice people be outraged by these infanticides?

edutcher said...

This guy would have wowed 'em at Nuremburg.

Mkd said...

Maybe cutting their necks was done to insure that they were truly dead, similar to precautions taken to avoid burying someone alive.

The babies were only " mostly dead".

Matthew Sablan said...

"As a legal matter, the defense is arguing that all these babies were poisoned in the womb, and thus they were dead when Gosnell stabbed them outside the womb."

Hey, remember this: "The argument then is: "My client is a creepy monster who mutilates dead things, not a murderer."

It's kind of a win, I guess?"

Do I win a cookie? (There's still way too much testimony to believe that this is the actual case, but hey, I feel good about calling it.)

AprilApple said...

The Obama Saul Alinksy argument.

cubanbob said...

The question not asked is if instead of an abortion procedure had these woman had an induced birth, would those kids have lived? If that is the case then it's a homicide no matter how you look at it. I wonder if the jurors are asking themselves that question.

Saint Croix said...

TV commentary on Huff Post. (Using footage from Fox).

During closing arguments Monday, defense attorney Jack McMahon showed photographs of a relatively neat waiting room and other areas in Gosnell’s clinic, saying that pictures don’t lie.

Who took those pictures? When? How did McMahon get them into evidence? You didn't call any witnesses!

Bizarre.

bgates said...

Maybe cutting their necks was done to ensure that they were truly dead

Is there another reason to cut a person's neck?

Matthew Sablan said...

Croix: Those are probably pictures from the waiting rooms that Gosnell allegedly took his white patients as opposed to the rooms we're familiar with where he took his minority patients.

Matthew Sablan said...

"Is there another reason to cut a person's neck?"

-- Beard protests?

Saint Croix said...

The judge is instructing the jury today. If it's a conviction, it should happen fast.

A hung jury could take a week.

The Waddill trial and re-trial suggests that it might be hard to find justice for babies who have been defined as sub-human.

Matthew Sablan said...

The jury might get hung on those counts, maybe (I doubt it.) But, I think Gosnell is going to be found guilty of something regarding the charges for the adult (or did those get dropped at some point?) Maybe not murder, but -something.-

damikesc said...

During closing arguments Monday, defense attorney Jack McMahon showed photographs of a relatively neat waiting room and other areas in Gosnell’s clinic, saying that pictures don’t lie.

Didn't testimony indicate he had clean room for white patients?

And having SOME clean rooms isn't quite good enough for a medical facility that should have ALL rooms being really clean.

Saint Croix said...

Photos have to be admitted into evidence. Maybe he used the prosecution's witnesses.

ndspinelli said...

In the NYT article it states this butcher would inject digoxin into the patient to kill the fetus. Well, there is an infamous case of a socipath male nurse who operated in many hospitals in Pa. and NJ. He is on death row in NJ for killing ~40 patients, although investigators believe it was in the 100's. His drug of choice was digoxin!! I would have used that in my closing argument. This nurse was nicknamed, "The Angel of Death," Not Inga

Mitch H. said...

Looks like he decided to "yell like hell". Hopefully that means that the law is against his client, because the facts surely are.

And technically, I would have gotten past Saint Croix's "no pro-life jurors" screen. At least, before this Gosell business broke. I think I'll have to stop claiming to be pro-choice from now on...

Bryan C said...

It's amazing anyone ever gets convicted of murder.

For all we know, every alleged murder victim has actually died from some unknown cause a fraction of a second before they were attacked.

But if you were to hold a gun against a man's head, and thereby triggered a fatal heart attack before your weapon discharged, and then you shot him, would you still be guilty of murder? I think you would be.

How is what Gosnell did any different? Whatever actions he took against the fetus in the womb, once it was out of the womb it was a baby. And stabbing it in the neck would clearly be done with murderous intent.

Jenn said...

"Maybe cutting their necks was done to insure that they were truly dead, similar to precautions taken to avoid burying someone alive."

Interesting analogy. What would happen to an undertaker who discovered that the "corpse" he was preparing was still alive - and then killed it? I have a sneaking suspicion that would be considered murder.

William said...

It's so easy to negatively stereotype a man who goes around snipping baby's spinal columns. Transvestite serial killers also suffer from such negative stereotyping. We need to step back and look at the larger picture.

cubanbob said...

Maybe cutting their necks was done to insure that they were truly dead, similar to precautions taken to avoid burying someone alive

If you had a doubt about the dead being truly dead then maybe you know or suspect that they aren't dead.

n.n said...

It’s a gas chamber. I would politely ask that you refrain from asking its purpose and respect the privacy of its occupants. They were told that it was for their welfare. It was their choice.

But did its function meet the standards and expectations of the community it served? Perhaps a less arbitrary and selective standard would settle the question once and for some time.

Revenant said...

It's possible. They removed all the pro-life people from the jury pool. So the jury would be like this...

Very impressive whining, Croix. It is perhaps your greatest skill.

Anyhoo, I have said before I think Gosnell's guilty. But the prosecution is relying entirely on the testimony of Gosnell's accomplices to establish that the babies were born alive. That at least one juror might have doubts isn't hard to believe.

The prosecutors themselves are obviously worried about this possibility, or they wouldn't withdrawn the other charges against him. That's not something a healthy prosecution does.

Hammond X Gritzkofe said...

Wait! Before the thread closes...
I've figured out how to do it.

We're NOT GOING TO CAVE IN TO TERRORISM! Next year we'll have a Boston Marathon bigger and better than ever!

Just it will be closed to participants, spectators, and the press.

Perfectly Secure, at no cost to Liberty.