A Trial in Case Against Fetal Experimenters Would Not Come Until Fall, Lawyer Predicts

A defense attorney for the three doctors indicted last year in connection with fetal experimentation at Boston City Hospital said yesterday that if the case goes to trial, it will probably not be until fall.

Marien S. Evans said the defense's motions for dismissal in the Suffolk County Superior Court case will most likely be heard in mid-summer.

The three doctors--including Dr. Leonard D. Berman, assistant professor of Pathology at the Medical School, and Dr. Leon D. Sabath '52, a former associate professor of Medicine--were charged last April with illegal transportation of dead human tissue at City Hospital.

Harvard is paying for Berman and Sabath's defense.

Berman, Sabath, Dr. David L. Charles, and Dr. Agnetta Phillipson allegedly broke the law while performing research that involved tissue cultures from the products of therapeutic abortions.

All were indicted for illegally transporting the tissue and for being accessories to the act, Phillipson, who lives in Europe, is no longer listed as a defendant because she did not appear for arraignment.

Newman A. Flanagan, assistant district attorney and the prosecutor in the case said yesterday that the June 24 hearing date for the motions of dismissal will probably be postponed.

All the Facts

Lawyers for both sides said yesterday the hearing date depends on Judge James McNaught's decision regarding pending defense motions for bills of particulars. The motions request elaboration by the prosecution of the circumstances of the alleged crime.

McNaught heard the motions two weeks ago, and Evans said yesterday that if his "imminent" ruling grants the defense the right to receive more information from the prosecutors, both sides will need extra time to prepare.

Particulars Preparation Pressed

Marshall Simonds, Sabath's attorney, said yesterday the defense would use the particulars in preparing motions for dismissal.

The defense has filed one such motion alleging that the experimenters were not sufficiently informed of the charges against them.

Simonds said the motions for a bill of particulars, which were submitted with a 40-page brief, are "broader than usual," because "the statute has been rarely used and the specifics of the crime were sufficiently unclear to the defendants."

The statute is a 19th-century law intended to prosecute grave-robbers.

Flanagan said yesterday the defense motion, if accepted, will force him to turn over details about what tissue was transported, and where, when, and by whom it was moved.

Flanagan conducted the investigation in Boston City Hospital in the fall of 1973 that produced the grand jury indictments of the team of experimenters, as well as that of Dr. Kenneth C. Edelin on a manslaughter charge, Edelin was convicted in February.

The investigation was prompted by the publication, in the June 1973 issue of The New England Journal of Medicine, of the four doctors' results in an experiment involving penicillin administered to pregnant women.

Berman said yesterday he is now "just sitting and waiting" for the motions to be heard, although he says he has not allowed the case to interfere with his work.