After more than a month of prosecution testimony on the eight counts of murder and other charges against Kermit Gosnell, the judge in the case — at the request of the defense — decided to throw out three of those murder charges on Tuesday, concurring that there wasn’t enough evidence to conclude that those babies were born alive. Fox reports:

Three of eight murder charges were thrown out Tuesday against a Philadelphia abortion provider whose clinic was called a “house of horrors,” apparently because the judge had not heard sufficient evidence from prosecutors that the three babies were viable, born alive and then killed.

Dr. Kermit Gosnell, 72, still faces the death penalty if convicted of first-degree murder in four remaining infant deaths. Prosecutors have argued that the babies were viable and that Gosnell and his staff cut the back of their necks to kill them. The judge also upheld murder charges in a patient’s overdose death. …

The jury will also ponder third-degree murder charges against Gosnell for the 2009 overdose death of 41-year-old Karnamaya Mongar, a recent refugee to the U.S. who died after an abortion at hiss Women’s Medical Society.

McMahon argued that third-degree requires malice, or “conscious disregard” for her life.

Here are some of the gory specifics on just what the defense sounded like via CNS News:

“If we are going in this room to say a baby is born alive because it moves one time without any other movement, that is ludicrous,” defense attorney Jack McMahon said. …

Philadelphia Common Pleas Court Judge Jeffrey P. Minehart granted judgment of acquittal for the first-degree murder charges of three babies in the case, identified as “Baby B,” “Baby C,” and “Baby G.”

According to the grand jury report, Baby C was “moving and breathing for 20 minutes before an assistant came in and cut the spinal cord, just the way she had seen Gosnell do it so many times.” …

Gosnell’s defense lawyer Jack McMahon argued that Williams “only saw one arm, one movement, one spasm.”  “This wasn’t a baby moving!” he said, when arguing that all counts against his client should be dropped.

…Shudder. The defense only started on Monday and that’s three murder charges dropped, but Gosnell still faces five other counts of murder, four for infant deaths and one against an adult woman, and if found guilty he may face the death penalty.