The Commonwealth's Case

NOT LONG AFTER the Edelin jury heard the last of Judge McGuire's instructions and left the courtroom to seek a verdict, a harried prosecutor New man Flanagan tried once more to hammer out some of the complex issues of the Commonwealth's case. For Flanagan, the trial was over. Instead of jurors he faced a dozen or so reporters, some standing beside the empty benches, some sitting in the jury box itself. But while he waited for the sequestered jury to come in with a verdict the prosecutor continued to wrestle with the reporters' questions about his version of what had happened in the course of the abortion by hysterotomy for which Edelin was charged with manslaughter.

If a "baby boy" had been alive after Edelin removed it from kill it? Prosecution and defense witnesses alike had testified that Edelin's last action with respect to the fetus was to hand it to the scrub nurse. Flanagan puzzled over the issues the reporters raised, asking for suggestions from them, and offering analogies. "If you hit me in the none," he said, "and I die, isn't it still your fault?" He was appealing to common sense, and to emotion as he had throughout his summation.

"TAKE A LOOK at the picture of this subject," Flanagan told the jury in his closing arguments. "Is this just a specimen? Are you speaking about a blob, a big glob of mucus?" The crux of his summation was that the fetus Edelin killed had been an independent human begin with "the right to live in society" under the protection of its law. Flanagan told the jurors that the only difference between the fetus and "normal human beings" were it weight and its cause of death.

His summation was notable for what he didn't say Flanagan avoided the tangled issues that he wrested with later in front of reporters in the near-empty courtroom. And he never mentioned, except indirectly the testimony of his only eye-witness to the Boston City Hospital abortion. Dr. Enrique Giminez-Jimeno. The star-witness's testimony early in the trial seemed incredibly damaging, and it was certainly the dramatic high-point of the prosecution's case. But Flanagan left Giminez Jimeno's lurid testimony in the background.

One reason for this omission may have been the internal contradiction that testimony introduced into Flanagan's case. Giminez-Jimeno depicted Edelin as ruthless and cold-blooded, saying that be ripped the placenta from the uterine wall "with force" and stood, motionless, with his and in the opened uterus for three minutes. "He was locking at the clock. Nothing else," he said. Giminez-Jimeno, and other doctors who testified for both the prosecution and the defense, agreed that such an action would have certainly caused the death of the fetus by anoxia.

On the other hand, Flanagan introduced testimony that the fetus breathed, and therefore lived outside the womb--one enthusiastic witness said that microscopic examination of the fetus's lungs showed that it had "gasped for breath." The defense argued that no prosecution witness firmly established that the fetus had ever breathed, and produced witnesses who testified that it had died in the womb, without taking a breath.

WHAT IS MOST striking about Giminez-Jimeno's testimony, in retrospect is that it agreed in its essentials with Edelin's own version of events: Edelin did, after all, perform an abortion with the intention of producing a dead fetus. The dramatic power of Giminez-Jimeno's testimony obscured the fact that he was accusing the defendant of something already stipulated. Some of the horror of that testimony was inherent in the nature of abortion.

The inseparability of the prosecution's argument from the gut issue of abortion was highlighted by the testimony of William Mecklenburg a Minneapolis obstetrician associated with the right-to-life movement. Mecklenburg attacked Edelin for what he called bad medical practice in the hysterotomy operation because the procedure is "extremely dangerous" to the unborn child. But abortion is meant to be dangerous-to-unborn children. Mecklenburg's testimony underscored something that became clearer and clearer as the trial went on: that the Commonwealth's case rested on a moral presumption that was not part of the law, the presumption that abortion is a crime.

Flanagan avoided reconciling the testimony of his eyewitness with the testimony that the fetus breathed. He never took a position on whether or not the fetus was alive when it left the womb--or more accurately, he maintained both positions, Hedging his bets, he argued for a new definition of birth. Anti-abortion spokesmen testified that a child was born--without ever leaving womb--the moment the placenta was detached from the uterine wall, forcing the fetus to "to on its own systems."

Both sides tried to elicit expert testimony on this question from their respective medical authorities, but in the end it became clear that it was not a medical issue. doctors have no professional reason to define a moment of birth--a lexicographer would have as much "expert" authority. In his charge to the jury, McGuire ruled that the jurors must accept the traditional notion of birth as the "emergence of a new individual from inside the mother."

IT IS HARD to escape the conclusion that the Common wealth's case was built less on these tangled, rational threads than on an appeal to emotion. Since the decision, several jurors have said that the photograph of the fetus had a strong effect on them, and figured importantly in their verdict. When Homans objected to the admission of the photographs, Flanagan argued that it was central to the Commonwealth's contention that the "victim" of the abortion had been a baby, and not just a fetus. The defense never denied that a 24 week old fetus is similar in appearance to a newborn baby, but appearance cannot be the criterion for an adequate definition of life or birth.

One juror told reporters that "we all agreed the abortion was perfectly legal. It was negligence. I don't think he did a thorough job examining the fetus for signs of life once it was removed." What that juror was saying was that Edelin was convicted on the bare possibility that a legal victim of manslaughter--a living human being--existed after what McGuire ruled was a legal abortion. The law requires a reasonable certainty.

Flanagan's definition of birth was ruled out by Judge McGuire, and the testimony of his only eye witness was discredited by the defense. But, for jurors who believed the evidence of their eyes, that a baby had lived and been killed, Giminez-Jimeno's testimony was irrefutable in its essence. The defense could not deny that Edelin had deliberately caused the death of what the jurors saw in that photograph. And it may be that the defense never succeeded in removing from their minds that first, vivid picture of Edelin as a ruthless, cold-blooded abortionist, standing motionless over a dying child.