Testimony during the second week of trial for Brian Finkel, the Phoenix abortion doctor accused of fondling his patients, is expected to be taken up mostly by some of the 35 alleged victims.
And if last week is any indication, jurors sitting in Judge Jeffrey Cates’ division of Maricopa County Superior Court can expect to hear more on the two predominant themes: The way Finkel touched alleged victims during examinations was unlike the way other doctors touched them and that they chose not to report the incidents because no one would believe them.
"The criminal conduct in this case was kept secret by many of these women for many, many years," said deputy Maricopa County attorney Blaine Gadow.
The emerging defense has been to pick out the inconsistencies between witnesses’ trial testimony and earlier statements to investigators, show that investigators put words in the mouths of alleged victims by using leading questions, and suggest through questioning that Finkel’s actions were medically proper despite a poor bedside manner.
"What’s improper," defense attorney Richard Gierloff said. "That’s what a lot of this question is about."
Finkel, an outspoken advocate of abortion rights who once performed 20 percent of Arizona’s abortions, is accused in two indictments of committing 66 counts of sexual abuse and sexual assault upon 35 victims.
Five witnesses took the stand between opening statements on Aug. 18 and Thursday, each taking a deep breath before entering the courtroom and inevitably ending up in tears and testy with defense lawyers who revealed inconsistencies between their testimony and statements to investigators.
Cates twice had to stop testimony so witnesses could regain their composure.
The first came Tuesday when Gierloff revealed to a 39-year-old Scottsdale woman that while she testified in court that Finkel groped her breasts twice during an exam, she told investigators early on about only one alleged incident.
"That makes it so much better if it says just one," the woman growled. "I need a break."
The women, whose ages ranged at the time of the alleged incidents from 18 to 36, all said they believed immediately that Finkel’s touching was unlike anything they had experienced with other doctors, including the way he touched their breasts during a breast exam or their clitoris during a pelvic exam.
A 27-year-old Colorado woman said doctors never touched her areolae or squeezed her nipples during breast exams as Finkel did.