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The Massachusetts Supreme Court two weeks ago cleared Dr. Kenneth C. Edelin of all charges in his appeal of a conviction for manslaughter for an abortion he performed in 1973.
William P. Homans Jr. '41, attorney for the defense, said yesterday he believes that the jury which originally tried Edelin was incorrectly instructed by James P. McGuire, the presiding judge, at that trial and he said he does not see how the Supreme Court could have ruled otherwise.
Edelin was convicted in April 1974 in a nationally publicized manslaughter case after he performed an abortion using a technique called hysterotomy on Oct. 3, 1973, while he was chief resident in obstetrics and gynecology at the Boston City Hospital.
Homans said the appeal was based on the fact that the jury found Edelin guilty of charges that were not those in the original accusation.
Originally, Edelin was accused of "ruthless and reckless conduct" toward a 20-24-week-old aborted fetus when, the prosecution maintained, it was still alive outside its mother's body.
Not of Woman Born?
The prosecution's top witness, Dr. Enrique Giminez-Jimeno, testified at the first trial that the fetus died within the womb while Edelin kept his hand in the uterus through an abdominal incision.
McGuire said at the first trial that the victim of manslaughter had to be "alive outside the body of his or her mother." His statement suggested that if the jury believed the testimony of Giminez-Jimeno, it would have to acquit Edelin.
Homans said yesterday he believes Edelin was convicted because the jury had been influenced to decide that a fetus could be considered alive after it is separated from the placenta inside the uterus.
McGuire instructed the jury before it gave the verdict that a body is only alive if it shows a steady heartbeat and respiration outside the mother's body.
Homans said that there was insufficient evidence to prove that the fetus was alive after the abortion. During the trial, the defense argued that the fetus was probably dead before Edelin began the hysterotomy operation, as a result of three previous attempts to abort the fetus by saline solution.
In a 30-page report that the Supreme Court issued regarding the decision to clear Edelin, McGuire asserted that the court should have ordered a directed verdict on the case (a verdict decided by the judge), without its going before a jury, an article in The Boston Globe reported on December 18.
No Directed Verdict
"We had originally moved for a directed verdict," Homans said yesterday, "because there was no proof for the accusations," adding that he had asked McGuire to "define abortion by the appropriate standards, and to instruct the jury this way, but his instruction did not come until the end of the trial."
Kenneth Ryan, professor of Obstetrics at the Medical School, said yesterday he doubts there will be future cases of manslaughter related to abortions.
"This was really an attempt to resurrect the old anti-abortion laws, and now that Edelin has been cleared, I think it will take some of the weight off of physicians who are presently performing abortions."
Allan J. Dershowitz, professor of Law, said yesterday he did not believe the Supreme Court could have rejected Edelin's appeal.
"The tragedy of the case is that it ruined two years of a good doctor's life and career, and just by getting the acquittal it does not mean that you're back in the same place you were before," Dershowitz said.
Neither Newman Flanagan, the prosecutor in the case, nor Edelin were available for comment yesterday
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