SAN FRANCISCO — David Daleiden was a young undercover investigator with a plan to expose Planned Parenthood’s alleged role in the illegal trafficking of fetal body parts.

He secretly recorded conversations with its physicians and infiltrated abortion industry conferences, and the resulting bombshell videos produced by the Center for Medical Progress put the nation’s largest abortion provider on the defensive, sparking a nationwide campaign to bar the flow of federal dollars to its coffers and congressional investigations of the organization.

But last week Planned Parenthood finally scored a major victory against the pro-life investigator.

On Nov. 15, a San Francisco jury in a federal civil trial found Daleiden and his four co-defendants liable of trespass and illegal recording of conversations with Planned Parenthood staff, among other violations of state and federal statutes, and ordered them to pay $2.2 million in damages to Planned Parenthood.

“This is a dangerous precedent for citizen journalism and First Amendment civil rights across the country, sending a message that speaking truth and facts to criticize the powerful is no longer protected by our institutions,” said the Center for Medical Progress in a statement released after the verdict and damages were announced.

Planned Parenthood trumpeted its legal victory. The jury, said the organization, “recognized today that those behind the campaign broke the law in order to advance their goals of banning safe, legal abortion in this country.”

In the wake of the verdict, the attorneys for the co-defendants will be filing post-trial motions challenging the judge’s decisions on several points. They are also awaiting a San Francisco superior court judge’s decision — expected by Dec. 6 — on whether a criminal trial will go forward, with Daleiden and his co-defendant Sandra Merritt now facing multiple felony counts related to their undercover recording of Planned Parenthood staff and others at a National Abortion Federation meeting.

In an interview with the Register, Peter Breen, one of Daleiden’s lawyers and legal counsel with the Thomas More Society, a public interest group, expressed frustration at the outcome of the civil trial. But Breen also vowed to “appeal the civil-case verdict at the 9th Circuit of the Court of Appeals and, if necessary, the U.S. Supreme Court.”

Possible grounds for appeal include the refusal of the trial judge, U.S. district Judge William Orrick III, to recuse himself, despite concerns about a conflict of interest because of a past association with Planned Parenthood, said Breen. He also flagged Orrick’s decision to bar him from sharing the content of the videos with the jury, creating an almost insurmountable hurdle for the defense’s attempt to justify Daleiden’s mission and investigative methods as a legitimate, if unorthodox, probe to expose illegal behavior.

The judge said the videos “were too ‘inflammatory,’” Breen noted. Yet the judge allowed “Planned Parenthood to put into evidence [reports of] murder, attempted murder and arson at abortion facilities — even though David and his team had nothing to do with that and had condemned such activity.”

“Planned Parenthood did everything possible to ‘dirty-up’ the defendants as liars, and we couldn’t show the evidence that demonstrated David’s good faith,” said Breen.

 

RICO Verdict

Catherine Short, legal counsel for co-defendant Albin Rhomberg and the legal director of the Life Legal Defense Foundation, told the Register that a verdict under the federal Racketeer Influenced and Corrupt Organizations Act (RICO) allowed the judge to triple the $870,000 in damages awarded to Planned Parenthood and expressed shock at the outcome.

“The jury did not listen to anything we were saying,” said Short, who had reminded the panel that her client had played a limited role in the project. “It was 100% liability for everyone for everything. It was clear at some point that they decided to go with a broad brush and not go with the details.”

In contrast, the superior court judge responsible for the criminal trial had taken a more even-handed approach, Daleiden’s lawyers said.

“We have had a much fairer [pre-trial] proceeding in the criminal case,” said Breen, while noting that a conviction in a criminal case required a higher standard of proof: guilt beyond a reasonable doubt.

In 2017, California Attorney General Xavier Becerra filed 15 felony charges against Daleiden and Merritt, a year after his predecessor, Kamala Harris, ordered investigators with the California Department of Justice to conduct a raid on Daleiden’s home, where they removed his laptop, several hard drives and his phone. Planned Parenthood filed its civil suit against Daleiden and his co-defendants after the release of the Center for Medical Progress’ videos in 2015. The videos were aired by media outlets and on YouTube and quickly caused an uproar in Washington.

One clip, featuring a Planned Parenthood official casually discussing the harvesting and sale of fetal body parts over lunch, raised questions about whether the organization’s doctors were altering abortion procedures to preserve specific fetal organs requested by researchers.

Planned Parenthood’s president, Cecile Richards, apologized for the “tone” of some comments captured on video, but insisted that its affiliates had not engaged in the illegal sale of fetal body parts and only charged handling fees for transporting fetal tissue to researchers.

At the same time, the organization attacked the credibility of its accusers, charging that the videos were manipulated by Daleiden and did not present an accurate depiction of events. Daleiden posted full-length versions and transcripts of the videos on his organization’s website.

During the six-week civil trial at the San Francisco courthouse, the defense presented Daleiden as a crusading pro-life journalist who modeled his investigative methods on 60 Minutes-style undercover probes, in which reporters infiltrate organizations and businesses to expose wrongdoing. Daleiden created a false identity and presented himself as a biotech entrepreneur who hoped to collaborate with Planned Parenthood affiliates in the sale of fetal organs for research.

Planned Parenthood’s lawyers argued that Daleiden, Merritt and the three other co-defendants were inspired by malicious intent to destroy the organization.

The judge ruled that the morality of Daleiden’s mission and methods was irrelevant to the case, and he barred, for example, testimony by Janet Smith, a Catholic moral theologian whom Daleiden had consulted for guidance before launching his probe.

And before the jury of nine men and one woman was sequestered, Judge Orrick told them that the defendants were liable for trespass and breach of contract and the only question was the amount of damages to be assessed.

In under two days, the jury returned a verdict, and found the defendants liable for  fraud, trespass, illegal recording of people without their consent, breach of contract and violation of RICO.

Breen blamed the verdict and damages, at least in part, on the judge’s refusal to allow a full review of the videos, related materials and expert witnesses who could explain the broader context and impact of Daleiden’s work.

“The jury didn’t get to see the videos,” he said.

“They didn’t understand the issue of fetal tissue” trafficking, and “we weren’t allowed to educate them.”

The defense had also been worried about the jury, selected from a pool that reflected the generally progressive political and social values of San Francisco.

In the juror questionnaires for jury selection, “most said they were pro-Planned Parenthood and pro-abortion ... and that religion played no role in their lives,” said Charles LiMandri, who also represented Daleiden and headed up the defense team.

“We were able to eliminate those who said they were vigorously against pro-lifers” and couldn’t give the defense a fair hearing.

 

Judge Orrick and Planned Parenthood

One issue that could be included in the grounds for appeal is Judge Orrick’s refusal to recuse himself, after questions were raised about an apparent conflict of interest in his presiding over a civil trial that featured Planned Parenthood as the plaintiff.

Breen noted that the judge served as the board secretary of Good Samaritan Family Resource Center, a nonprofit that provides services to immigrants, when it invited a Planned Parenthood affiliate to open a clinic on its premises. The defense’s legal team also raised questions about the fact that Judge Orrick’s wife had previously registered her support for Planned Parenthood in its legal battle against Daleiden on social media.

“The problem, as best we can tell, is that he helped to set up a Planned Parenthood clinic for one of the plaintiffs at no cost,” said Breen.

“To us, that shows an intertwining of the judge with one of the plaintiffs. The standard is that even the appearance of bias” should lead the judge to recuse himself.

Teresa Collett, a law professor at the University of St. Thomas law school, addressed this objection and told the Register that the judge’s obligation to recuse himself hinged on the precise nature of his conflict of interest.

 “It would be important to know how the immigration nonprofit’s association with the Planned Parenthood clinic was established,” said Collett.

“Was that a decision the board had to actively approve, and did the judge vote for it? Or was the decision made by the executive director?” she asked.

“As for whether it appears to be improper, the question is: How well-known is this relationship? If people don’t know about it,” it’s less likely to raise doubts about whether a fair trial is possible.

“In our rule of law, we want people to believe these are neutral decision-makers, not activists. That is a fundamental principle justice requires.”

 

First Amendment Issues

More importantly, an appeal by the defense will also challenge the judge’s direction that the jury set aside First Amendment claims made by Daleiden.

In essence, “the defense of Daleiden and his colleagues was that they were citizen investigators and the liberties they took were justified in order to obtain accurate and truthful evidence of potential crimes and misconduct by a major institution receiving public funds,” said Collett.

She noted that two very different standards could apply in this case, depending on whether the speech in question is understood to be private speech or language protected by press freedoms.

“The judge appeared to be saying: You [the defense] are not a recognized journalist or a member of the media. You are a private citizen, essentially a vigilante, disregarding all the rules about fraud and trespass and recording,” she said.

The civil-trial verdict, Collett added, reminded her of the RICO claims made against pro-life activist Joe Scheidler. Scheidler’s 20-year legal battle brought him to the U.S. Supreme Court three times. In its 2006 decision in Scheidler v. National Organization for Women, the high court ruled that RICO laws could not be used to challenge abortion-business protests, which were otherwise protected by the First Amendment freedom of speech.

“Ultimately, Scheidler won at the Supreme Court, but only after tremendous financial and personal cost, with the stress of having that RICO conviction against him,” said Collett.

As the case goes forward, the legal issues will be refined, and the constitutional structure in the arguments may shift as the defense looks to the Supreme Court and recent high-profile cases that affirmed free-speech rights in abortion and same-sex “marriage” cases.

However, earlier this year the U.S. Supreme Court declined to hear an appeal seeking to dismiss a lawsuit against Daleiden and the Center for Medical Progress on the grounds of First Amendment freedoms.

In the short term, Daleiden’s lawyers expect to file an appeal with the 9th Circuit by next month.

The liberal tilt of that appellate court’s rulings has already raised alarm among Daleiden and Merritt’s supporters.

But experts note that the composition of the 9th Circuit has altered, with the arrival of several judges nominated by President Donald Trump, who pledged to name jurists who interpret the Constitution according to the Framers’ original intent.

“With many new appointees of President Trump on the 9th Circuit,” Ed Whelan, a constitutional scholar who blogs at National Review’s “Bench Memos,” told the Register, “Daleiden has a much better chance of drawing a panel that won’t be hostile.”

Joan Frawley Desmond is a Register senior editor.