Edelin Requests Conviction Reversal; Flanagan Defends Jury's Decision

Lawyers for Dr. Kenneth C. Edelin argued a motion at a hearing in Suffolk County Superior Court yesterday to overturn his February 15 manslaughter conviction on the grounds that the verdict went against the weight of the evidence.

Assistant district attorney Newman A. Flanagan, prosecutor in the case, argued that "the fact-finding function belongs to the jury," and that "we must assume their judgment to be reliable."

Suffolk Superior Court judge James P. McGuire took the motion for a directed verdict under advisement and is expected to issue a decision in about two weeks, Flanagan said.

McGuire could grant Edelin either acquittal or a new trial. If he denies both, the case would proceed on appeal to the Supreme Court of Massachusetts.

After a six-week trial. Edelin was convicted by a nine-man, three-woman jury of manslaughter for the death of a fetus following a legal abortion he performed in October 1973.

Prejudice

Defense attorney Charles R. Nixon '60, professor of Law, argued in court yesterday that the case had been prejudiced by a variance between the charges originally made by the prosecution and the crime of which Edelin was finally convicted.

He said the defense had concentrated its efforts against the original charges that the fetus had been killed "completely inside or partially detached from the mother." While under a ruling finally given by McGuire in his charge to the jury, the fetus only becomes a person when it has breathed completely outside the mother.

Charged as Proved

Nesson added that even if the prosecution had proved I delin guilty under this ruling the case would be invalid because. "The offense must not only be proved has a charged it must be charged as proved."

Flanagan said that his proof that the fetus had been killed outside the mother was consistent with his original charge that it had been killed "partially removed" from her and was not a still birth as the defense had argued. The jury's judgement was that the fetus was born alive and therefore Edelin was guilt's of man slaughter Flanagan said.

Nesson claimed that medical testimony had been inconclusive in determining whether the child had breathed inside or outside the mother. He said that witnesses "came down on the both sides of the question," but that the defense had been unable to cross-examine them on this question.

To do so would have meant an implicit concession that the fetus had breathed at all, said Nesson.

Flanagan called these arguments "Wednesday morning quarterback."

Edelin sat quietly through the proceedings which lasted an hour and a half. More than 80 spectators and a dozen newsmen attended the hearing