HOUSTON — The stars seemed aligned for a criminal indictment of Planned Parenthood’s Texas affiliate: Explosive videos alleged proof of an illegal trade in fetal tissue, and a criminal investigation was launched in Houston at the behest of Texas’s pro-life lieutenant governor, led by a prosecutor that described herself as a “proud, pro-life Texan.”
After several months of investigating, a Harris County grand jury found probable cause that a crime had been committed — but by the undercover investigators, not Planned Parenthood Gulf Coast.
In the stunning turn of events, David Daleiden and Sandra Merritt — the lead investigators of the Center for Medical Progress, which ran an elaborate undercover sting operation of Planned Parenthood that produced a series of damaging videos released last year — now have warrants out for their arrest, with a $10,000 bond.
Both Daleiden and Merritt face second-degree felony charges of tampering with government documents, and Daleiden faces a misdemeanor charge of attempting to buy human tissue.
The most serious charge against Daleiden and Merritt involves their use of fake California driver’s licenses that had the names “Robert Daoud Sarkis” and “Susan Tennenbaum.”
According to Texas statutes, tampering with a governmental record applies to a person who “makes, presents or uses any record, document or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record.” The felony charges carry up to 20 years in prison, although legal experts point out that, ordinarily, the use of fake IDs seldom provokes felony charges or even prosecution at all.
A person violates the Texas Penal Code’s “Prohibition of the Purchase and Sale of Human Organs” if “he knowingly or intentionally offers to buy, offers to sell, acquires, receives, sells or transfers any human organ for valuable consideration.” The misdemeanor charge carries up to one year behind bars.
“We were called upon to investigate allegations of criminal conduct by Planned Parenthood Gulf Coast,” Harris County District Attorney Devon Anderson said in a statement Jan. 25. “As I stated at the outset of this investigation, we must go where the evidence leads us. All the evidence uncovered in the course of this investigation was presented to the grand jury. I respect their decision on this difficult case.”
Many pro-life leaders and activists reacted in shock. More than 70,000 activists signed the “I Stand With David” LifeSite petition within 40 hours.
“It’s horrifying that the Houston grand jury failed to indict the organization who was willing to sell baby body parts yet somehow manages to indict the journalist who caught them in the act,” Kristan Hawkins, president of Students for Life of America, which awarded Daleiden its “Defender of Life” award at its national conference in San Francisco on Jan. 24, said in a statement. Hawkins also stated that the presence of an employee in the District Attorney’s office who serves on Planned Parenthood Gulf Coast’s board “confirms an incestuous relationship between corrupt officials in the Harris County DA’s office and the nation’s largest abortion provider.”
Lauren Reeder, a prosecutor who works in the Harris County DA’s criminal family law division, notified DA Devon Anderson at the start of the investigation of her relationship with Planned Parenthood Gulf Coast. Anderson, a Republican first appointed to her position by former Gov. Rick Perry and endorsed for her election bid by Texas Right to Life in October 2014, told the Houston Chronicle soon afterward that Reeder “will not be involved in any manner in this investigation.”
Anderson defended herself from the attacks on her pro-life convictions, telling the Chronicle that “the inconvenient truth of a criminal investigation is that it doesn’t always lead where you want to go.”
Pro-life advocate Abby Johnson — who used to run Planned Parenthood Gulf Coast’s abortion center in Bryan, Texas, before becoming pro-life — said she did not believe that politics influenced the prosecution’s handling of the case with the grand jury, noting that Anderson is “conservative and was supported by Gov. Rick Perry.”
‘Runaway’ Grand Jury?
University of Notre Dame law professor Gerald Bradley, who served a number of years as an assistant district attorney in Manhattan, told the Register that grand jurors “can request to be instructed on charges which may not have been contemplated going in.”
“If the evidence in front of the grand jury would be sufficient to support those requested charges, I think a prosecutor should give them,” he told the Register in an email.
However, he said there is a “very good chance” that the charges “could be dismissed by the court upon defendants’ motion, on the ground that it is a selective prosecution.”
“Basically, the argument would be that using a fake ID is rarely prosecuted and almost never as a felony, and that, in this case, the grand-jury indictment reflects hostility to the anti-abortion message of the defendants,” he said. “Thus, the indictment has more to do with violating the defendants’ free-speech rights than it does with using a fake ID.”
Terry Yates and Jared Woodfill, two Houston-based lawyers serving on the legal team defending Daleiden and Merritt, advanced similar arguments about the fake-ID felony charge, The New York Times reported in a Jan. 28 article titled, “Lawyers Assail ‘Runaway Grand Jury’ in Indictments of Abortion Opponents.”
“How many of us have used a fictitious driver’s license to buy beer?” said Yates. “Can you imagine every kid that did that being charged with a second-degree felony? This grand jury has overreached.”
Yates and Woodfill, who is a former chairman of the Harris County Republican Party, both called for a new grand jury to be convened to investigate Planned Parenthood’s conduct.
The Times also reported that a spokesman for DA Anderson indicated she was receptive to considering Yates’ and Woodfill’s arguments.
“Sometimes justice is served by dismissing cases,” commented the spokesman, Jeff McShan.
Planned Parenthood Connection
Texas Right to Life’s legislative issues director, John Seago, told the Register it did appear “suspicious” to their organization that this is the second time recently that a grand jury turned down an indictment of an abortionist under Anderson’s watch. A grand jury in December 2013 declined to indict Houston late-term abortionist Douglas Karpen, who had been accused by activists from Operation Rescue as being a second Kermit Gosnell.
At the same time, Seago conceded that Texas Right to Life did endorse Anderson after that case, when she ran for her first full term in 2014. Anderson touted the Texas Right to Life PAC endorsement on Facebook “as a proud, pro-life Texan and mother of two,” adding, “I will always take a stand for those who cannot yet defend themselves.” Planned Parenthood Gulf Coast had endorsed and donated to the campaign of her opponent, Kim Ogg.
The Houston Chronicle also reported that a local Democratic lawmaker was concerned Anderson’s investigation was politically motivated against Planned Parenthood and demanded she investigate the investigators.
By that time, Anderson had already pledged that if the grand jury found probable cause to believe that a law was broken, “We’ll pursue it, whichever side it occurs on.”
Two other state investigations by the governor’s office and attorney general’s office, as well as a Senate probe, are ongoing, and those will continue, despite the Houston grand jury’s decision.
Seago noted that Texas does have vagaries and loopholes in its abortion law that the legislature is now seeking to tighten up, in light of the videos.
“It is possible that the grand jury looked and weaved themselves through those loopholes to let Planned Parenthood off the hook,” he said.
But in a Jan. 27 video statement defending her office’s conduct, Anderson rejected the calls for a new grand jury. She also defended the felony charges against Daleiden and Merritt for using fake IDs, commenting “That’s the law,” and denied that PPGC board member Reeder had any involvement with the DA’s investigation of the case or its presentation to the grand jury.
“In this case, an independent grand jury concluded that laws were broken and indictments followed,” she said. “The two defendants are represented by counsel and will have their day in court.”
The Next Steps
In a statement, the Center for Medical Progress said that it had done nothing wrong in investigating Planned Parenthood in Houston: “The Center for Medical Progress uses the same undercover techniques that investigative journalists have used for decades in exercising our First Amendment rights to freedom of speech and of the press and follows all applicable laws.”
Both Daleiden and Merritt are expected to surrender themselves at the Harris County jail and will have separate counsel representing their cases. The Thomas More Society and Liberty Counsel, representing Daleiden and Merritt respectively, are the public interest firms that will be working with local attorneys on the case.
Peter Breen, special counsel with the Thomas More Society, told the Register the next step will be the arraignment, where DA Anderson will take over the prosecution of the case. Breen said he is hopeful that the state will decline to pursue the indictment. Otherwise, the next phase will be discovery, where evidence is gathered, followed by the trial process. The burden on the prosecution is to prove that a crime was committed “beyond a reasonable doubt.”
“What we believe the evidence shows is that David was using standard undercover journalistic techniques and that use of those techniques were both legal and proper,” he said.
Breen said the Texas tampering statute was not intended to “punish a whistleblower” and that nobody in the United States believes Daleiden and Merritt ever intended to trade in fetal tissue. He added that one party in those videotaped conversations actually did.
Said Breen, “Planned Parenthood had the money, means and motive to commit the crime of trafficking in baby body parts.”
Praying for the Truth
The Center for Medical Progress’ videos have led to multiple state and federal investigations against Planned Parenthood. Its Gulf Coast affiliate has lost close to its annual $3 million in Medicaid funding as a result. However, the undercover sting has also brought multiple legal actions against Daleiden, Merritt and others at the center — including a lawsuit alleging they violated RICO anti-racketeering laws.
Breen said that the Thomas More Society is seeking to terminate the lawsuits, but if they go on, “The effect of them is to extend the life of the story of baby-body-part trafficking in the public eye.”
Abby Johnson cautioned that supporters of Daleiden and Merritt, such as herself, have to remember that “we have to operate within the law.”
“I believe that, at all times, pro-lifers must uphold the law, and if we find that laws were broken, even by people who were pro-life, then there must be consequences,” she told the Register.
At the same time, Johnson noted earlier in a Jan. 26 Facebook post that, if the case against Daleiden and Merritt does proceed to trial, it could backfire badly for Planned Parenthood, courtesy of the negative information about its operations that might be unearthed during the discovery element of the legal proceedings.
“I’m personally excited about the discovery that will take place against Planned Parenthood. And, yes, if laws were broken by David or anyone else, then that will also come out,” she said.
“But we may finally get the truth out about Planned Parenthood. And that’s what we need to be praying for.”
Peter Jesserer Smith is the Register’s staff reporter.
Register staff contributed to this report.