"How Could You Defend Him?" Megyn Kelly & Gosnell's Lawyer

Ms. Kelly says to Kermit Gosnell's attorney, Jack McMahon, "We don't tar the attorney with the sins of the client," but she does go after him for defending him not as a client but as a human being.

McMahon did honestly point out that his client was "upset" and "disappointed," and I don't think Ms. Kelly should have laid into him for answering the question honestly. She also, I think, unjustly laid into him for pointing out Gosnell's courteous demeanor toward his attorney. In fact, those statements might be the only reality-based things McMahon utters during the entire interview. A more appropriate response on her part might have been to ask whether or not you are gentlemanly with your lawyer really means that you're a sweet guy. After all, total psychopaths are charming and even courtly when it behooves them to be so. Take Ted Bundy as case in point. Virtually nobody who knew him could believe he was a serial murderer because he was, to them, just such a pleasant, friendly guy. That's not indicative of what was going on inside.

And from there on we get to where McMahon and reality part ways. He says he won't claim that "things did not get out of hand" at Gosnell's clinic. He concedes that "things went a bit awry." Describing what was going on at Gosnell's clinic as "a bit awry" is akin to saying that the Titanic "did sustain a bit of damage" when it hit the iceberg.

McMahon then says that Gosnell is not "defined by the events of 2008" but rather than "he's defined by 72 years of life. 

To some extent, that's true. But we're not talking about something Gosnell did when he was young, that he came to repent of and make amends for. We're talking about the culmination of those 72 years of life. He spent his life moving toward that point.

Now, Ms. Kelly laid into McMahon about the babies wriggling and crying on the operating table, and McMahon takes exception to that, saying that this isn't what the testimony said. And he squeaks around with a half truth. No, the babies weren't wriggling and crying, because their mothers were massively doped up and a lot of those drugs passed the placenta and made the babies too woozy to be as active as a newborn would usually be. But they were moving and making sounds. To have been able to do that when they were as doped up as they were is in fact even more evidence of how vibrantly alive they were -- that they had so much life in them that even with the drugs in their systems they were capable of movement and sound. 

For McMahon to try to pretend those babies were coming out dead is to deny all other evidence and to rely solely on Gosnell's self-serving statements to his lawyer. Either that, or Gosnell told McMahon the truth and McMahon is keeping that as attorney/client privilege -- in which case he should tell the truth and say, "What actually went on, as Dr. Gosnell told me, is a matter of attorney-client privilege, since he denied to take the stand and share his experiences on his own behalf."

One thing that gets me is that McMahon keeps saying that they respect the verdict, then argues that it's not true. You can't respect a verdict if you're saying it's utterly wrong. McMahon repeatedly dismissed the verdict as simply a "belief" that the jury had rather than as a finding of fact.

When Ms. Kelly gets on McMahon for explaining away Gosnell's clinic as "things went awry," he diverted blame to those who failed to inspect the place. He's tacitly admitting that Gosnell would not hold himself to any standards that he wasn't being forced to follow by an outside power. That makes the horrors that went on inside that building even a stronger defining factor of who Kermit Gosnell really is. He's the kind of man who, instead of striving to do better because he cares, slid into utter sloth and savagery once there was nobody holding a threatening stick over him.

Then when Ms. Kelly started laying into McMahon over the filthy conditions -- the fleas, the cat feces, the blood, the dirty instruments -- McMahon started insisting, "Not true. Not true." As Seth Williams famously (and incredulously) commented, "Was he even there at the trial?" The bloody equipment and furniture were right in the courtroom in front of him for weeks on end. 

Then McMahon talked about how many patients had, "and almost all of them were referrals or repeat business."

I can take the "repeat business" as perhaps evidence that the conditions were not as appalling as they were made out to be. Though I have read prochoice writings indicating that women tend to expect a bit of squalor at an abortion clinic. "He's not Marcus Welby, but at least he's a doctor." Women have also said that they feel so bad about themselves going in for an abortion in the first place that they don't think they deserve better.

The referrals? That's a reflection on the people and organizations that made the referrals, and not on Gosnell. 

Ms. Kelly then characterized Gosnell as running "a late term abortion clinic," which McMahon took umbrage at, insisting that "over 95% of them were first term abortions."

 According to the Grand Jury Report, "When Latosha Lewis began work at the clinic in 2000, the practice would perform approximately 20 first-trimester and 5 or 6 second-trimester abortions every procedure night. By 2009, however, the practice’s first-trimester abortions had dropped off significantly."

Let's say that it was five second trimester abortions to ever 20 first trimester abortions. That's still 20%, back in 2000 before the place started getting a bad reputation and referrals started falling off. Again, from the Grand Jury report:

Gosnell began to rely much more on referrals from other areas where abortions as late as 24 weeks are unavailable. More and more of his patients came from out of state and were late second-trimester patients. Many of them were well beyond 24 weeks. Gosnell was known as a doctor who would perform abortions at any stage, without regard for legal limits. His patients came from several states, including Delaware, Maryland, Virginia, and North Carolina, as well as from Pennsylvania cities outside the Philadelphia area, such as Allentown. He also had many late-term Philadelphia patients because most other local clinics would not perform procedures past 20 weeks.

Furthermore, during the raid:

The search team discovered fetal remains haphazardly stored throughout the clinic – in bags, milk jugs, orange juice cartons, and even in cat-food containers. Some fetal remains were in a refrigerator, others were frozen. Gosnell admitted to Detective Wood that at least 10 to 20 percent of the fetuses were probably older than 24 weeks in gestation – even though Pennsylvania law prohibits abortions after 24 weeks.

It's hard to argue that 95% of the abortions were first trimester when at least 10%, possibly even 20%, were third trimester.

McMahon himself said that of the 47 fetuses sent to the Medical Examiner, all but two "were within the limit of 24 weeks." He did not say that 46 of them were in the first trimester, which would have to have been the case if those were a representative sample of aborted babies and only 5% of Gosnell's abortions were done past the first trimester.

McMahon then said that all the state's witnesses testified that the feet were kept for DNA analysis. No, they said that Gosnell told them that he was keeping the feet for DNA analysis. And the claim is nonsensical anyway, because a blood sample would be sufficient for DNA analysis; all the experts consulted said that there was no legitimate reason to keep severed feet. And as for his claim that the patients' families requested that he keep the babies' feet in jars, that reaches the point of absolute absurdity.  

McMahon also said that Gosnell did 16,000 abortions "and they only found two or three feet." How ghoulish is it that they found any feet? We've all seen the pictures of the jars with at least three feet. Ashley Baldwin testified to having seen 30 jars with severed feet. Kareema Cross showed investigators a photo of a cabinet full of jars of feet. 

It is nice to note in closing that as a result of dealing with the Gosnell case, McMahon decided that the legal cutoff for abortion needs to be more like 16 or 17 weeks so that there's no possibility at all of a live birth. It's also nice to note that Ms. Kelly stressed that high profile, respected prochoice groups oppose some of the commonsense things that McMahon came out in favor of after the trial.

McMahon should stick to defending his client as somebody with certain legal rights such as a jury trial. Where he makes his mistake, as I said before and as Megyn Kelly seemed to find so revolting, was in defending Gosnell as a human being.