Flip Flop: Murder Charge Back for 'Breathing' Baby, Dropped for 'Jerk and Move' Baby

By Elizabeth Harrington | April 24, 2013 | 11:40am EDT

Dr. Kermit Gosnell. (AP Photo/Philadelphia Police Department via Philadelphia District Attorney's Office)

(CNSNews.com) –Philadelphia Court of Common Pleas Judge Jeffrey P. Minehart flip-flopped today on which babies late-term abortionist Dr. Kermit Gosnell could be charged with murdering and which ones he could not.

Gosnell was originally charged with murdering seven babies born alive as the result of late-term abortions at Gosnell's clinic.

On Tuesday, Minehart granted Gosnell an acquittal in the alleged murders of three of these babies--“Baby B,” “Baby C,” and “Baby G.”

But today, citing what he called a "clerical error," the judge switched Gosnell's acquittal in the murder of "Baby C" to an acquittal in the murder of "Baby F."

According to the grand jury report, "Baby C" was "moving and breathing for 20 minutes” before it was killed. "Baby F” jerked its leg before Gosnell severed his spinal cord, according to testimony.

Acquitting Gosnell for the alleged murdering of the wrong baby was “my error,” Judge Minehart said.

Minehart is still dropping the charges against Gosnell for the murder of three babies.  But today they are the charges for the alleged murders of Baby B, Baby F and Baby G--not Baby B, Baby C and Baby G.

Gosnell now faces charges for the first-degree murder of four babies born alive, not the seven he was originally charged with murdering. He also faces charges for third-degree murder in the death of a mother, infanticide, as well as conspiracy, abortion at 24 or more weeks, theft, corruption of minors, solicitation and other related offenses.

Steven Massoff, an unlicensed medical school graduate, testified to the grand jury that he was assisting Gosnell with an abortion of Baby F when he saw the baby’s leg “jerk and move.”  It was estimated that the gestational age of Baby F was between 25 and 27 weeks (6 to 7 months old).

That charge is now dropped.

Baby Boy B, with slit neck, discovered by police at the abortion office of Dr. Kermit Gosnell, the Women's Medical Society in West Philadelphia, Pa. (Photo: Grand Jury Report.)

Gosnell’s defense lawyer, Jack McMahon, argued on Tuesday that all charges should be dropped, saying, “If we are going in this room to say a baby is born alive because it moves one time without any other movement, that is ludicrous.”

The other two charges thrown out include Baby Boy B, a 28-week-old male whose body was discovered at the clinic in the freezer during the raid in 2010, and Baby G, who Massoff testified exhibited “a respiratory excursion,” or breath before its neck was cut.

According to the Grand Jury Report on the case, Baby Boy B’s body “was found at the clinic frozen in a one-gallon spring-water bottle, [and] was at least 28 weeks of gestational age when he was killed. … The 28-week fetus, a male (Baby Boy B) had a surgical incision on the back of the neck, which penetrated the first and second vertebrae.”

“We believe, given the manner in which Gosnell operated, that he killed the vast majority of babies that he aborted after 24 weeks,” reads the Grand Jury Report. “We cannot, however, recommend murder charges for all of these cases. In order to constitute murder, the act must involve a baby who was born alive. Because files were falsified or removed from the facility and possibly destroyed, we cannot substantiate all of the individual cases in which charges might otherwise have resulted”

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