The Practice

As the criminal trial against abortion doctor Brian Finkel entered its first trimester last week, this became clear: When the time comes, Finkel's lawyer is going to have to tie the accused sexual abuser into stirrups, then drug him to keep him off the witness stand. 

Finkel was in his favorite place -- center stage -- at the long-awaited jury trial in downtown Phoenix before Superior Court Judge Jeffrey Cates.  During the often graphic opening statements, he constantly peered into the packed spectators' gallery for friendly faces (front row -- his wife of three decades, his daughter, and a few other supporters), and for media types. 

Finkel shook his head from side to side slightly as he digested prosecutor Blaine Gadow's opening remarks.  He also scribbled frantically on his yellow notepad and whispered often into one of his attorneys' ears. 

Once, this self-proclaimed lightning rod for the right-to-life movement was one of the nation's most visible abortion doctors, appearing often on national television shows, defending both his practice and a woman's right to choose.  Now, the 53-year-old Finkel is in a down-and-dirty fight for his own right to live the rest of his life however he chooses, instead of behind bars. 

Finkel is facing 66 felony charges, including 58 counts of sexual abuse and eight counts of sexual assault.  Each of his 35 accusers listed in the high-profile case allegedly was abused while they were one of his patients. 

The doctor -- now suspended from the practice of medicine -- has pleaded a resounding not guilty to all charges. 

"They misconstrue professional conduct for professional misconduct," Finkel told New Times in a September 2001 story published before his arrest and indictment ("Bedside Matter," Paul Rubin, September 20, 2001). " Physicians that abuse their patients in this state go to prison.  I'm not going to prison, because I'm not doing anything wrong." 

Prosecutors Gadow and Cindi Nannetti hold a different opinion, one they hope will come across loud and clear to the 18-person jury (it includes six alternates) by the end of the trial, about two months from now. 

In his opening statement, Gadow reminded the panel that "this case is not about abortion.  Abortion is not the problem for these patients." 

He spoke of a sacred trust -- that of a physician to his or her patient -- that Finkel allegedly had betrayed.  Gadow said the doctor's alleged victims had been assaulted and/or abused "in what may be their most vulnerable position," drugged, undergoing an abortion, their legs in stirrups in a brightly lighted room. 

Gadow conceded that Finkel has a reputation as a skilled surgeon, but added, "He also is a sexual abuser who was almost obsessive about sexual matters with his patients." 

One problem for Finkel is that none of the alleged victims apparently knew each other before authorities finally got around to piecing the case against him together. 

They come from all walks of life, Gadow told the jury of the alleged victims.  The only thing many of them have in common, he said, is that they are women who went to Finkel's office for their abortions, only to be sexually abused by the doctor.  Some of the women have alleged that he played with their clitorises before performing the abortions (what Finkel's female medical assistants are expected to testify they privately called the "clit flick"), breast fondling, and, in one alleged case, oral sexual contact. 

In his opening statement, lead defense attorney Richard Gierloff conceded his client "is a man some people find abrasive," but that Finkel's alleged victims had confused the doctor's chronically brusque demeanor with sexually aggressive behaviors. 

"The question is, was this conduct a crime, not [medical] malpractice," Gierloff said. ". . .  This whole case is not about what he did.  It's about his manners." 

Gierloff blamed New Times for its "lurid" story of Finkel's alleged sexual improprieties, which he claimed led to the doctor's subsequent suspension from the practice of medicine and criminal indictment. 

Gierloff also accused Mark Stribling, an investigator with the Maricopa County Attorney's Office, of engaging in "word transfer" with the alleged victims.  Word transfer in this instance seems to be convincing a suspected victim that she may have been sexually "fondled," not just "touched," which sounds far more malicious. 

"Words are like viruses," Gierloff said.  He claimed that Stribling -- a career cop who has been a key force in the county attorney's recent legal battle against the Catholic Church -- had conducted leading interviews with the women who contacted his agency with their own allegations after New Times published its Finkel story in September 2001. 

Prosecutors led off their case with Kathe Kalmansohn, a 39-year-old single mother, who first contacted New Times with her allegations in the summer of 2001 (the paper did not use her real name in that first story). 

Extremely emotional at times, Kalmansohn said she'd awakened after Finkel had completed the abortion procedure to find Finkel lying on top of her, fondling her breasts in a sexual manner. 

No dummy in the courtroom, Gierloff on cross-examination tried to impeach Kalmansohn with her own statements to police, reporters (she did a later interview with Glamour magazine) and attorneys. 

He pointed out she'd told some people that Finkel had pulled her gown up to her neck before the abortion procedure, but told others she had done it herself.  Gierloff also noted Kalmansohn earlier had alleged that the doctor had pulled off her socks in the operating room at his North Seventh Avenue office, but now was testifying she'd taken them off herself. 

In response to a question, Kalmansohn told Gierloff she'd like to think that she would have bolted from Finkel's office if he hadn't already given her a strong sedative, but she couldn't say for sure what she would have done. 

What she did do is have her then-boyfriend call Phoenix police to file a complaint of sexual misconduct against Finkel within minutes after leaving his office following the abortion.  That fact alone surely helped credibility with the jury.