David Daleiden’s Legal Team Fights Back on Planned Parenthood Undercover Video Charges

‘What we want is an apology,’ Daleiden’s lawyer comments as the Center for Medical Progress leader, and his undercover colleague Sandra Merritt, are booked and post bond in Houston.

Pro-llfe activist David Daleiden speaks to the media after appearing in court at the Harris County Courthouse on Feb. 4 in Houston.
Pro-llfe activist David Daleiden speaks to the media after appearing in court at the Harris County Courthouse on Feb. 4 in Houston. (photo: Eric Kayne/Getty Images)

HOUSTON — Pro-life activist David Daleiden, his colleague Sandra Merritt and their attorneys are fighting back against the criminal indictments that a Texas grand jury returned against them last week for their undercover investigation of the Planned Parenthood Gulf Coast facility in Houston.

Daleiden and Merritt appeared this week at Houston Criminal Court, where they were booked and posted bond. Afterward, they stood outside the courthouse with their attorneys and addressed dozens of sympathetic pro-lifers who cheered and held signs.

“David and his team have done nothing wrong. They have not violated the laws of the state of Texas,” said Peter Breen, special counsel with the Thomas More Society, during a press conference following Daleiden’s court appearance Thursday.

Breen said Daleiden’s legal team has no plans at this time to accept a plea deal from the Harris County District Attorney’s Office.

“What we want is an apology,” Breen said. “That’s really what we’re after now.”

On Jan. 25, the district attorney’s office announced that a grand jury indicted Daleiden, the project lead for the Center for Medical Progress, and Merritt on charges of tampering with a governmental record, a felony. Daleiden is also charged with purchase and sale of human organs, a misdemeanor.

The grand jury accused Daleiden and Merritt of using fake California driver’s licenses with false names to defraud officials and gain access to an April 2015 meeting at a Planned Parenthood facility in Houston. The purchase and sale of human organs appears to be related to an email that Daleiden, posing as a representative from an organ-procurement company, sent to Planned Parenthood leaders last year seeking to purchase fetal tissue.


First Amendment Defense

Attorneys representing Daleiden and Merritt argue that the facts of the case do not support the charges, and they say the defendants have First Amendment rights since they were acting as undercover journalists to expose Planned Parenthood’s alleged trafficking and sale of fetal body parts for profit.

Last year, the Center for Medical Progress released several undercover videos from its 30-month investigation of Planned Parenthood that Daleiden said clearly show the abortion provider violates federal law by selling baby body parts for profit and manipulating invoices and documents to cover up the trail.

On Tuesday, the day before Merritt appeared in Houston, the Center for Medical Progress released a new video and documents it obtained from a Texas Public Information Act request that purports to show that Planned Parenthood Gulf Coast used accounting gimmicks to hide its alleged illegal sale of fetal tissue.

“I think we all know that every day that goes by that the Texas authorities do not prosecute Planned Parenthood for their illegal trade in baby parts, they’re sending a message to the entire country that the state of Texas right now is open for business in baby body parts,” Daleiden said during Thursday’s press conference.

“The videos speak for themselves, and they’re shocking. That is why it’s even more mind-boggling that Planned Parenthood was not indicted, but the journalists were,” said attorney Mathew Staver, the founder of Liberty Counsel, who is representing Merritt.


Diversion Offer Rejected

Staver told the Register that the district attorney should dismiss the charges outright. He said the defense team has not accepted a prosecution offer to reduce the felony charge to a misdemeanor if Merritt participates in pre-trial diversion, a probationary-type program that would result in the charges being dropped if Merritt abides by certain conditions that could include community service.

“We have not accepted that because we don’t believe she did anything wrong,” Staver said. “It’s stunning that, within 10 days of a felony indictment that carries a penalty of two to 20 years in prison, the district attorney would offer a misdemeanor that could actually be dismissed with no plea of guilty and no entry of a plea at all.”

Said Staver, “To me, that really underscores the weakness of their case.”

Jeff McShan, a spokesman for Harris County District Attorney Devon Anderson, told the Register that the district attorney’s office routinely offers pre-trial diversion to nonviolent, first-time offenders.

“We offer it to people just like them every single day,” said McShan, who added that Anderson has offered pre-trial diversion to both Daleiden and Merritt. In pre-trial diversion, a contract is signed where the defendants agree to certain conditions. In some cases, defendants agree to plea guilty, but the case is dismissed if they abide by the agreement, which can run from six months to a year.

Asked whether the district attorney’s office would consider defense attorneys’ demands that the charges against Daleiden and Merritt be dismissed outright, McShan said, “Absolutely not.”

“We have a strong case, and we’re ready to go to trial, if need be,” said McShan, who told the Register that using a fake driver’s license from another state is a felony in Texas. He also challenged the defendants’ position that they were acting as undercover journalists.

“I was a journalist for 31 years,” McShan said. “As a journalist, would you break the law to catch a bad person? You cannot. You have to follow the law.”


Planned Parenthood’s Position

Planned Parenthood Federation of America, which did not return a message from the Register seeking comment, posted a statement after Daleiden’s court appearance, in which the abortion provider called him an “anti-abortion extremist.” In a prepared statement, Eric Ferrero, vice president at Planned Parenthood Federation of America, said the “wheels of justice have only begun to roll.”

“We don’t expect this to be the last time these extremists are booked and fingerprinted,” Ferrero said. “These people broke multiple laws and violated the law in at least four states, all in order to spread lies about Planned Parenthood.”

Planned Parenthood has denied selling fetal tissue for a profit and maintains that the Center for Medical Progress’ videos are heavily edited and misleading. The abortion provider says officials in 12 states have cleared Planned Parenthood of any wrongdoing and that another eight states declined to launch investigations because of a lack of evidence.

Last August, Texas Lt. Gov. Dan Patrick asked the Harris County District Attorney’s Office to investigate Planned Parenthood Gulf Coast after the Center for Medical Progress’ undercover video. However, after reviewing evidence and hearing testimony for more than two months, the grand jury chose not to return any indictments against Planned Parenthood officials. Anderson said all the evidence uncovered in the investigation had been shown to the grand jury.

“The inconvenient truth of a criminal investigation is that it doesn’t always lead where you want to go,” Anderson said in a video statement where she also described herself as pro-life and that she believes abortion is wrong.


Pro-Lifers: Grand Jury Was Biased

Christine Melchor, director of the Houston Coalition for Life, told the Register that she and other local pro-lifers were “flabbergasted” when Anderson announced the indictments.

“We figured from the start that they went in with the intention of prosecuting the pro-lifers instead of Planned Parenthood,” said Melchor, who described the videos as a “great educational instrument.”

“At least on those videos the humanity of the unborn child is brought to life,” she said. “I think, for the general public, as more people learn about this, they want to get involved in the pro-life side. This has exposed Planned Parenthood for doing something illegal.”

Melchor, who was among a group of about 30 pro-lifers supporting Daleiden on Thursday, said there will be more prayer vigils outside the Houston courthouse if the defendants go to trial. Attorneys representing Daleiden and Merritt said there is a lot more to the story that is yet to unfold.

Said Staver, “We will ultimately push this through discovery, and we’re going to find more information about what was going on in the district attorney’s office and the grand jury, which we believe should never have indicted in the first place.”

Register correspondent Brian Fraga writes from Fall River, Massachusetts.

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