PHILADELPHIA — A Philadelphia judge dismissed three of eight murder charges Tuesday in the high-profile trial of a Philadelphia abortion provider accused of killing babies allegedly born alive at his clinic, dubbed by prosecutors ‘‘a house of horrors.’’
Dr. Kermit Gosnell, 72, still faces the death penalty if convicted of four remaining counts of first-degree murder involving babies allegedly killed with scissors after being born alive.
Judge Jeffrey Minehart did not explain why he dismissed the three murder counts, but apparently felt he had not heard sufficient evidence from prosecutors that those three babies were viable, born alive, and then killed. Much of the evidence during the five-week prosecution case has come from the recollection of former staff members, though their testimony was bolstered by graphic photographs of some of the aborted babies.
Prosecutors argued that the babies were viable and that Gosnell and his staff cut the back of their necks to kill them.
‘‘Why would you cut a baby in the back of the neck unless you were killing it?’’ Assistant District Attorney Ed Cameron asked.
The defense questioned testimony from staffers who said they had seen babies move, cry, or breathe. McMahon argued that each testified to seeing only a single movement or breath.
The judge also upheld murder charges in a patient’s overdose death. Gosnell is charged with third-degree murder in the 2009 death of 41-year-old Karnamaya Mongar, a recent refugee to the United States who died after an abortion at hiss Women’s Medical Society.