Gosnell witness unsure if babies were alive

UPDATE: The Gosnell trial has taken Monday off because Gosnell's attorney is ill.

WHEN THE capital-murder trial of abortion doctor Kermit Gosnell began March 18, city prosecutors boldly told the jury that Gosnell murdered seven viable babies by cutting their spinal cords.

"What those women and babies suffered through at the hands of that man is inexcusable; it's unconscionable and it's also criminal," Assistant District Attorney Joanne Pescatore said in her opening statement.

Five weeks later, however, Chief Medical Examiner Sam Gulino, a prosecution expert witness, was uncertain about whether any babies had been born alive then murdered in Gosnell's abortion clinic.

Far from corroborating the prosecution's position, Gulino, testifying last Monday, said he could not say whether any of 47 fetuses recovered from the clinic had been born alive.

He explained that his ability to make a determination was hampered by the fact that the fetuses had been frozen by Gosnell and had to be thawed out before he could examine them.

"We know that the freezing and thawing will destroy tissue, cause fluid to leak from blood vessels into tissue, and that would potentially impede the method that we usually use to determine if fetuses are liveborn or not," Gulino told Assistant District Attorney Edward Cameron.

Last Thursday, the prosecution rested its case against Gosnell, 72, who faces the death penalty if convicted of murdering the seven babies, whose remains were found in his Lancaster Avenue clinic during a February 2010 FBI raid. He is also charged with the third-degree murder of a woman who died of a drug overdose during a botched 2009 abortion.

Gosnell defense attorney Jack McMahon - who is expected to begin presenting his case this week - seized on Gulino's inability to say that his client had killed living babies.

"And am I correct then that based on your total evaluation of these fetuses, 47 of them, we've gone over this at length, you cannot testify that any one of these was born alive, can you?" McMahon asked.

"That's correct, I cannot," responded Gulino.

Later, McMahon queried: "Every piece of objective evidence that you are able to look at as a forensic pathologist, right, objective, not speculation, not theoretically or what might happen when frozen, but hard and firm evidence . . . is consistent with a stillbirth; correct?"

"That's correct," Gulino said.

Gulino also told McMahon that he did not file birth or death certificates for any of the 47 fetuses - a state requirement only when a baby is born alive, then dies.

Anti-abortion activists at the trial said they were unfazed by the inconclusive nature of Gulino's testimony because a parade of ex-Gosnell employees testified credibly against him.

Most of those witnesses have pleaded guilty to crimes they committed at the clinic.

"He was as honest as he could possibly be. That's what you want. You want the truth; you don't want anything to be tainted," the Rev. Clenard H. Childress Jr. said of Gulino.

"If he could not conclusively say that they were alive, then that's fine with me because there were people there that said they were," added Childress, founder of Blackgenocide.org.

"Why would you have to cut the baby's spine if the child was already dead? For him to cut the baby's spine was to kill the child," said Dr. Day Gardner, president of the National Black Pro-Life Union.

"So no matter what Jack McMahon tried to put across in the court, [Gosnell] cut the spines of these children," said Gardner, who travels by train from Washington, D.C., to attend the trial.