Odd Visages at the Edelin Trial

When the judge said, "Clear the table," the show began. The transcripts and medical textbooks that crowned the defense desk were pushed aside dramatically, and Dr. Kenneth C. Edelin stepped solemnly down from the witness stand still gazing at his attorney. The jammed gallery was quiet as Edelin assumed an intense, slight hunch above the now-clear table and poised his long, thin hands 15 inches above the solid oak at the same level where, if this were operating room number two of the Boston City Hospital on October 3, 1973, the womb of a 17 year-old woman would have lain open and bleeding. Edelin twisted his head 140 degrees backwards and fixed his eyes on a spot where, if this really were operating room number two, two clocks maybe two broken clocks--would have been mounted on the wall.

"Pause from this time on Sir," the attorney a large man in a dark blue suit said gruffly as he stared down at his watch in apparent ignorance of the tableau he had just created in room 906 of the Suffolk County Court house. For the jury man watching earnestly the partisans in the gallery had stopped rustling their literature the prosecutor was suffering quietly with his back in Edelin, the reporters had stopped taking notes, the officious court officers were sitting in glum disability, and the judge had yielded his court to an cerie silence and the imaginary proscenium of the defense table to leave the prosecution's case broken.

Edelin's neck was chafing against his collar and the contorted defendant wayed slightly to maintain his composure. From 2.36 to 2.39 p.m., he stood with his neck craned awkwardly until he sensed the time was up and raised an eyebrow towards the attorney as if to obtain his release. Four people in the gallery laughed nervously, the suddenly useful court officer snapped his gavel hard into his desk to maintain order, the attorney snapped his chinup from his watch, and the three minutes were up suddenly.

The defense thus delivered its most striking, if non-verbal, testimony in the Suffolk County manslaughter trial of Dr. Kenneth Edelin. And even if it was all for effect, it was more than matched the intense description of an act of manslaughter that prosecutor Newman A. Flanagan, assistant district attorney, had been imaging repeatedly since his opening argument. And it was precisely that description that the defense was attempting to explode in its drama over the table.

Flanagan alleges that on October 3, 1973, Edelin stood over the patient and, with his eyes fixed on the operating room clock, held his left hand motionless within her open womb for a period of between three and five minutes. And that only when he was satisfied it was dead, Edelin extracted the fetus. And that this fetus had for a brief period been alive, and had even breathed, and that this fetus was "viable" and could have survived on his own outside the woman who had requested the abortion. But, through the actions of Kenneth Edelin, this "male child" died of anoxia, or deprivation of oxygen to the body, during the period when the doctor stood watching the clock.

The first defense bombshell fell at exactly noon on Friday when William P. Homans Jr. '41, the attorney in the dark blue suit, held exhibit ten, an 11-by-16 black-and-white photograph of operating room number two, up to the witness and asked him if the picture differed in any way from what the operating room looked like on that October morning. Edelin, with a nonchalance he could be accused of having rehearsed, said tersely, "The clocks." He remembered they were both broken at the time of the operation. And although this testimony was supported only by his memory, the statement left a crucial fracture in a prosecution case that depends so graphically on the image of an aloof and calculating doctor whose eyes were transfixed by a second hand while a baby lay dying beneath his own hands.

But defense preparations for the scene that was to have the prosecution's case broken in a silent courtroom look a lot longer to carry out. Homans had to establish first that the clocks in operating room two were on the same wall, that there was only one direction in which a right handed surgeon would have had to face to perform the involved hysterotomy operation and that this direction was diametrically away from the clocks. Before Judge James P. McGuire gave his order to clear the desk. Flanagan objected twice and McGuire held two lengthy conferences at the bench, while the defendant gazed morosely out past the jury and the gallery with his chin planted on his fist.

Edelin's time on the stand has been the most exciting period of the trial. From Thursday to Monday, the gallery was swarming with his partisans, who urged him on with barely repressed gesticulations; the special interest groups were plying the assemblage with their canned arguments during recesses outside the courtroom; the press section was swollen with national reporters and court artists, who all perhaps sought the glimmerings of sensationalism, and the defense did not shrink, of course from injecting the testimony with a little high drams.

Room 906 of the Superior Court is a drab, lofty-ceilinged room constructed with a kind of austere efficiency, doing away with the symbolic bar which might have dignified counsel, but fastidiously erecting pontifical stations for the court officers, where the gavel-equipped crew has achieved a sort of porcine grandeur. The only gothic element of the courtroom consists in long and severe, slit-like windows. The wind is forever howling among the tall buildings that hold up Government Center, but it is hardly a tragic sound, and occasionally, when the beefy officer with the jowls like the Verrazanno Bridge shuffles to the back of the room to open a certain window, you can hear the cars honking on Somerset Street. The press has responded dutifully to this long list of prosaic particulars, by failing to come up with a name for the trial in the tradition of either the "Scopes Monkey Trial" or the trial of the "Chicago Seven."

The charge of manslaughter, however, is apparently a grave enough touch of atmosphere for the defendant Edelin, and his defense has made a concerted effort to gain an acquittal despite a surprising agreement with the prosecution on the facts of the case.

To examine the complexities of the case, it is easiest to begin with these agreements. The operation for which Edelin was indicted, both sides agree, was a hysterotomy, a procedure in which the abdomen and the uterus of a pregnant women are cut open for the purposes either of abortion or delivery. During this operation. Edelin separated the placenta of the fetus from the uterine wall of the patient, thus depriving the fetus of the nutrition that sustained its pre-natal life. The defense will even concede the presence of the body, for it agrees with the prosecution that his operation ultimately yielded a male fetus with no signs either of pre-natal or "human" life.

The defense argues that his particular operation was an abortion undertaken at the request of the patient, and with the understanding on Edelin's part that it would result in abortion of the fetus. Therefore, the defense cites the January 1973 ruling of the U.S. Supreme Court in Roe v. Wade to demonstrate that all abortions--even up to the 40th. or last week of pregnancy--were legal at the time of the operation, especially because Massachusetts had not exercised the option as outlined by that ruling of limiting the legality of abortion on a viable fetus.

The prosecution responds that Roe V. Wade is irrelevant here because the operation was not an abortion by definition, in spite of the intention of either the patient or Edelin. Instead, Flanagan contends, this hysterotomy operation resulted in the delivery of a live male child that was subsequently killed. He says that legal "birth" occurred in the course of that operation when Edelin separated the placenta of the fetus from the uterine wall; that after that point, the fetus was detached from the mother and living under its own systems for a period of time. In Flanagan's definition of birth, it is not necessary even that "the subject" must have breathed--let alone been removed from the body of the mother--although, the prosecutor has entered testimony to the effect that respiration did occur.

Homans's definition of birth is much more restrictive, insisting that the fetus must have breathed to have been born. And he contends that the fetus in the case "never drew a single breath." Judge McGuire's instructions to the jury, after the attorneys' closing arguments, will be critical in providing a definition of birth.

What Flanagan knows he must further prove to win his case is that the fetus was viable, since this birth would mean nothing unless the fetus was old enough to have survived. If the fetus were pre-viable and would have died apart from the woman, there can be no grounds for the allegation that Edelin killed a human being. Flanagan has argued that the fetus was between 24 and 28 weeks gestational age, while Homans--holding fast on a line of arguments that is not essential to the proof of his own claims--contends that it was between 20 and 22 weeks old.

However, such a strict examination of the prosecution's case implies that it would not oppose abortions in which the surgeon's contact with the fetus occurs only after it is dead--as in, say, an abortion by saline infusion--and that the prosecution of Edelin is aimed simply at abolishing abortions by hysterotomy. Still, many charge that the prosecution has a much more purposeful motive: that anti-abortion forces lie behind the indictment.

A hulking man with a sonorous voice and a formidable court presence, Homans builds his defense with a stern precision based on diligent research and a certain irascible doggedness. One prosecution witness who spent five minutes testifying that the fetus breathed before it died found he had to spend another full day in court, being dragged across the forensic coals by the irreconcilable Homans. Dr. Enrique Gimenez-Jimeno, the state's top witness, who said he remembered particulars the hysterotomy operation, was forced to acknowledge under Homans's severe questioning that he could not recall key aspects of the operating room scene that were curiously irrelevant to the prosecution's case.

Last Thursday and Friday, Homans spent hours patiently leading his client through a painstaking description of medical procedure and the treatment of the 17-year old woman, whom Homans protected by dubbing "Alice Roe." Edelin at first appeared nervous or perturbed, but he is a verbal man and responded with lengthy and coherent answers. Alternately furrowing his brow, gazing down at the linoleum floor, or staring sidelong out through a window, Edelin usually paused before answering questions and displayed a calm bemusement when his attorney, the court typist, or the judge stumbled on his scientific terms. He usually called the fetus and placenta "the products of conception" in describing abortion technique, and these explanations lacked the graphic polemicism that marked some prosecution testimony on the same subjects. Edelin employed his hands in controlled and graceful explication of his testimony--"sweeping" the placenta from the uterine wall in the air with the first and second fingers of his left hand and once clenching his right hand to represent the fetus's head.

During the recesses, members of the Edelin Defense Fund stood in the hallway congratulating each other on the convincing testimony, but Thomas M. Connelly, who is active in the right-to-life movement, flitted about anxiously, drawing deeply on a habitual Chesterfield or guessing shrewdly at possible contradictions in the defendant's testimony.

Connelly, who is unemployed and once ran for Boston City Council, has been in court since mid-October, when he was the only one in the gallery during hearings on defense motions. He makes the pregnant pronouncement that he is responsible for Edelin's presence in the dock, but he will not elaborate. A large man with red hair and a great round cheese of a face. Connelly is the banshee of this trial. He can convince you that you have come to a funeral, and even when the gallery is packed, he moves his seat away from the crowd and gazes fixedly at the witness.

Joel Friedman is also unemployed, but he sides with Edelin. He comes to the court room every day and speaks with noisy authority about the trial. During the recesses he holds hands with Lucy Kaufman, who works nights but makes it to the court house every day. She has a lachrymose face, but it is hard to tell whether it is because of her schedule or her sympathy for the defendant. There are other assortments in the court room. On late Friday afternoon, as Flanagan began his cross-examination, the kid from The Harvard Crimson sat between a large black man with a stiff mustache who glared at the ceiling, and an effeminate reporter with a pale mustache who scribbled furiously.

Flanagan is a short, burly, handsome man with a beaverish grin. He wears a different tie to court every day and their florid colors are rivalled in the dull courtroom only by the countenances of his fellow prosecutors. Joseph I. Mulligan, Charles Dunn and Donald Brennan are a trio with vinous-colored faces and gray hair, that has rarely rustled from the branch, inhaling the soporific incense of their sedentary station at the prosecution table. Flanagan does the arguing.

The prosecutor's cross-examination of Edelin was a little haphazard, skipping back and forth from one antagonistic strain to another but dropping constant suggestions to the jury. There is no love lost between Dr. Edelin and Mr. Flanagan, and Edelin appeared a little hectored when he left the stand on Friday. On Monday Edelin grew more confident and stoutly resisted Flanagan's efforts to suggest that he wandered from acceptable medical practice in his treatment of the patient. The defendant answered questions forcefully and sometimes angrily; twice he wagged his right forefinger at the prosecutor; and he never had to plead the fifth amendment under the blustering cross-examination.

The defense attorney has a craggy, hand some face that is the color of boiled beef. The deeply-graven lines from the wings of his nose to the outside of his mouth give him a simian look. You can usually tell how the defense is faring from the mood on William Homans's face. On a disappointing day he is irascible and his forehead is wrinkled. On a good day his eyes light up, and the lines outside his nose become smile lines.

On Monday afternoon, the court recessed at 4 p.m. sharp, 20 minutes after Kenneth Edelin was excused from the witness stand. The jammed gallery emptied slowly, some reporters conferred briefly, and Edelin rose stiffly with a relieved but happy expression. And William Homans, sitting on the defense table, was grinning broadly.