NBC 10 News Philadelphia, WCAUTV 2013-05-13 3PM Gosnell Trial Commentary

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We are getting some information in our ear. We think we have a defense attorney on the phone who can give us some insight as to the jury’s verdict and this case. Is that right? We have our legal analyst Enrique Latoison on the phone.

Yes, I’m right here.

Enrique, you have heard, I’m sure, the charges, the convictions that have come down. Any shock, any surprise to you, as to what you are hearing on these charges?

Well, at this present time, with the verdict that has come down, it’s not something that, I should say, surprises me, based on the evidence that came out in trial. The jury took a very long time to deliberate in the case to come up with their verdict in this matter. They obviously took the case very seriously. They deliberated well over a week and they reviewed evidence various different times coming back requesting from the judge.

Yeah and when you hear about the not guilty, and Doug, if you want to step in here, if you talk to him about the not guilty charges, can you go over those for Enrique one more time, just so he can give us a little bit sense of what may have led the jury to come to conclusion on that.

Enrique, as Darlene and I were talking about, that was the first not guilty of those significant charges for Kermit Gosnell, and we weren’t quite sure what differentiated that one from the other three first degrees. That was something, I guess, a little debatable, in terms of state of life at time of the life ending.

Well, I think that the defense attorney in this case was always careful to point out that no one knew exactly for sure whether or not the babies were actually alive. So, I think each individual charge that he had the first degree murder had its own set of circumstances that dealt with whether or not the baby was alive. So, I don’t find it beyond comprehension that they would find him not guilty on one or maybe not even more than one, based on the fact that it still was a circumstantial evidence that was given on whether or not the babies were actually alive. So, the fact that they found some of them guilty and one not guilty, it just goes to show that, once again, the jury took each individual charge and reviewed it very carefully and, for whatever reason, couldn’t agree on that one charge but did agree on the other ones.

Enrique, if I could interrupt you for just one moment. I understand that we have a live picture of Kermit Gosnell leaving the courthouse. We have a crew over there and a camera. I can see them from where we are. I could see the sheriff’s office. They are taking Kermit Gosnell out the courthouse here. He is in a white van that our viewers can see on the monitor. You can see the sheriff’s deputy, kind of, pushing reporters back but we understand. Kermit Gosnell is leaving the criminal justice center here in __ city in a white van, undoubtedly heading back to the jail where he has been all of this time, Doug.

And, I’ll tell you, the sheriff’s deputies have been very guarded about anyone near those sally ports, the garage where Kermit Gosnell has been brought from his jail cell to over here the criminal justice center, as well as safe guarding the jurors. This is not a sequestered jury. But often times, they would meet at a remote location. They would be vanned in the CJC and then leave accordingly. And, there was a little rift last week, where some photographers strayed down near the sally port there and some of the jury became concerned and actually spoke with judge and said we are very concerned because we saw media near those outlets. So, the __ have been very, very guarded.

Enrique, if we could bring you in, could you give us a little bit of an insight? As a legal expert, you have been doing this for a number of years, what happens next? We see Kermit Gosnell leaving, going back to the jail in that white van. Could you take us through the process of what happens with him next?

Say that one more time, I’m sorry.

No, I understand, I totally understand. I just want you to kind of take us through the process of what happens with Kermit Gosnell. We see this picture of him leaving the criminal justice center, heading back to the jail, of course. Take us through the process of what happens with him next.

Well, what happens now is he is definitely kept in protective custody, if he is not already and probably kept under 24 hour watch. When you are found guilty of a case like this with a first degree murder charge and the common wealth have, obviously, have made a death penalty case, it would be common procedure for the jail to keep a close eye, a close watch, and to make sure to protect him from himself and to protect him from other inmates.

Enrique, talk just a little bit about the actual sentencing process, a first degree conviction verses, let’s say, a third degree murder conviction. We know the first degree the judges kept the gag order in place. Third degree seems much more relaxed, in terms of access and communication with counsel, but with first degree, tell us what then will happen with Kermit Gosnell as he comes back through the process.

Sure. A third degree murder has a maximum sentence of 40 years, minimum of 20. So, you’re looking at a 20-40 year sentence. In his particular case, what probably would be for most would be a life sentence. However, with the first degree, this is an automatic life sentence. Now, they will move on to the sentencing phase. The sentencing phase will then determine whether or not this will be a death penalty case. The jury, in this case, will have to have a unanimous, beyond a reasonable doubt, find in aggravated circumstances to indicate a death penalty in this case. And then, of course, his defense attorney, Mr. McMahon, will present evidence and present mitigating circumstances to offset the aggravating circumstances that the common wealth will use to have a reason to argue to the jury to argue to the death penalty. So, this sentencing phase will actually will also be a very long phase. I can see it easily taking a week or two to go through that phase. So, it will definitely be a long process. It is not something that will be over quickly.

Now, we are keeping close tabs on what’s happening here inside of the sally port here at the criminal justice center because we though Kermit Gosnell left out already in a white van, but we are now being told that he may not have been in that van and may in fact be in another van that, I believe, we have a live a picture on. But, Enrique, I know we still have you there. I want to talk about the penalty phase because we had heard from the judge that early on that they would move directly into that phase. What’s interesting is that during the murder trail we did not hear testimony from Kermit Gosnell. In fact, his attorney, Jack McMahon, called no witnesses; instead they tried to poke holes into the prosecution’s case through their closing arguments.

That was a calculated risk.

It was.

A big calculated risk that, obviously, did not work.

It did not. So, now, you have to wonder, will we hear from Kermit Gosnell in the penalty phase? It seems like you would almost have to, if you want to at least try to avoid what could now be a death sentence.

And, Enrique, you raise an interesting point about the aggravated nature of the crime. If the jury felt as though he was a first degree convict and not a third degree, I’m just wondering if you have all those adjoining aggravated circumstances, if they would be inclined to offer a death penalty or maybe just think life is just punishment.

Well, I mean, the common wealth is going to educate the jury on what those aggravated circumstances are. The __ of the statue, one of them off the top of my head is a child under 12 years old. That’s got to be very easy for the common wealth to show the jury these were babies that we are talking about here. Now, as far as the sentencing phase goes, and Mr. Gosnell testifying, without second guessing the attorney in the case, Mr. McMahon, and what his intentions are, I would assume in similar cases like this, it’s very common that the defendant would testify and, once again, not questioning what he’s doing, that’s his strategy for his case, but very similar cases like this, at this point there’s nothing to lose, only his life is on the line at this point and it would help if he were to testify and would tell his side of the story or tell the jury, especially in showing mitigating circumstances. So, he needs to show mitigating circumstances in order for this just to be in a life sentence instead of a death penalty sentence.

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