Undercover pro-life activist David Daleiden faces criminal prosecution in California this September for making undercover videos exposing Planned Parenthood's sale of fetal body parts.
Recent pre-trial developments have ruled in the 30-year-old Catholic’s favor.
On Monday U.S. district Judge William Orrick said that Daleiden and fellow activist Sandra Merritt can defend their actions as journalism, reported The Washington Times.
The previous week the same judge cut down the amount of Planned Parenthood’s lawsuit, from potentially more than $20 million to less than $100,000.
Daleiden is potentially facing more than a decade in prison as the state of California proceeds with prosecuting him for more than 15 felonies related to his undercover filming of abortion-industry workers at conferences, restaurants and at work in their facilities.
Although the federal courts have halted the release of additional videos by Daleiden’s Center for Medical Progress, those previously released in 2015 show Planned Parenthood officials “haggling” over prices paid by research firms for aborted fetuses and the altering of abortion techniques to produce more “intact specimens” to make them of greater value to those firms.
In one video featuring, Planned Parenthood official Dr. Mary Gatter said the organization could use a “less crunchy technique [than suction abortions] to get more whole specimens.” While asserting that “the money is not the important thing for me,” she went on to joke, “I want a Lamborghini.”
Daleiden and co-filmer Merritt’s 15 criminal felony counts are for non-consensual eavesdropping and conspiracy. The prosecution has been spearheaded by California Attorney General Xavier Becerra and was previously overseen by his predecessor, Kamala Harris, now California’s U.S. senator and a Democratic candidate for president of the United States.
Daleiden has been represented pro bono by the Thomas More Society, a Chicago-based, public-interest law firm, which has thus far unsuccessfully appealed to the California Supreme Court to halt the prosecution.
Peter Breen, one of Daleiden’s attorneys, describes the prosecution as an “unconstitutional harassment of David, bringing charges against him that don’t pass the ‘red face test.’”
The Thomas More Society contends that Daleiden used standard undercover journalism techniques to uncover wrongdoing by Planned Parenthood.
As Tom Brejcha, another Thomas More Society attorney representing Daleiden explained, “The true aim of these lawsuits brought by Planned Parenthood and the National Abortion Federation (NAF) against Daleiden is not justice, but rather the obstruction of justice. Planned Parenthood and NAF are working to shut down Daleiden’s investigation of the abortion groups’ involvement in baby-parts trafficking.”
Journalists working for mainstream news outlets routinely use similar undercover journalism tactics to ferret out hidden crime, he continued, “so, too, David Daleiden should have the right to penetrate the criminal underworld of America’s abortion providers and report all the evidence he has uncovered of criminal wrongdoing to law enforcement and to members of the public.”
Brejcha gave the example of animal-rights activists filming alleged mistreatment of animals at slaughterhouses and are subsequently applauded by public officials for their work, and he further noted that Daleiden was the first to be prosecuted under California’s anti-eavesdropping laws, suggesting that his prosecution was selective.
Although the situation is evolving, at present, a preliminary hearing will be held Sept. 3. If the judge determines that there is probable cause that Daleiden has committed a crime, a trial date will be scheduled. The hearing for the civil case will be held Sept. 30.
When Thomas More Society attorneys go before the judge, Brejcha said, they will argue that California’s eavesdropping law only applies to confidential communications.
Daleiden recorded conversations made in public places that could be easily overhead by others, not only in hotel ballrooms, but even in restaurants where serving staff and those at nearby tables can easily overhear.
Additionally, they will argue that Daleiden anticipated securing evidence that Planned Parenthood had committed a crime, the aborting of fetuses in such a way that their commercial value would be enhanced, followed by their selling to research firms.
Brejcha believes the prosecution of Daleiden to be “unduly harsh,” and he speculated that it would do harm to journalists who do undercover work.
The California prosecution, the law society’s website noted, is “closely allied with, and supported by, Planned Parenthood.”
Brejcha added that whenever they’ve had a court appearance on the case, an attorney representing Planned Parenthood has been involved.
The real purpose of the California prosecution, Brejcha believes, “is to teach David a lesson: Keep your hands off the abortion industry.”
He continued, “The abortion industry has a very vulnerable underside and has gone to great lengths to keep their activities under wraps. David has exposed their work to the sunlight, and has made them look bad. Cecile Richards, the former head of Planned Parenthood, has admitted that the videos make them look bad.”
One interesting aspect of the case is the additional undercover videos Daleiden and Merritt filmed but have not yet released.
Judge Orrick and the Ninth Circuit Court of Appeals issued an injunction forbidding the Center for Medical Progress from publishing any more of these videos. The videos will be shown as part of the prosecution’s case in court, but they will not be allowed to be reproduced in any way and shown to the public. A journalist sitting in the courtroom and watching the video can take notes and write about what he’s seen but cannot even take a frame screen shot to be shared with readers.
California is the only U.S. state pursuing criminal charges against Daleiden. A criminal case had been filed in Houston, but all charges were dismissed. In addition to criminal charges, Daleiden also faces civil charges in California and Washington.
While there is no way to admit with certainty how the Daleiden case will go, Brejcha is “guardedly optimistic” that the young pro-lifer will prevail.
He expects the case will ultimately go to the U.S. Supreme Court and that it could take many years. Brejcha founded the Thomas More Society in 1997 while defending another prominent pro-lifer, Joe Scheidler, when he was charged under RICO statutes. The NOW v. Scheidler case lasted 28 years and involved three trips to the U.S. Supreme Court, with Scheidler winning.
The appointment of two potentially pro-life justices to the U.S. Supreme Court by President Donald Trump “gives us hope that we’ll get a fair hearing,” Brejcha noted, “and that on the legal issues we should prevail.”
He pleaded with supporters to support the nonprofit Thomas More Society by making a donation at ThomasMoreSociety.org, as “the expenses we’re incurring are enormous.”
In addition to appealing for donations, Brejcha concluded, “We have a vital need for prayers. There is much at stake, and we’ve made much progress in recent years. We’ve had many struggles, but we’ve demonstrated that if we hang in there, we’ll ultimately prevail.”
Jim Graves writes from Newport Beach, California.
Amy Smith contributed to this article.