Did the Houston DA’s Office Abuse Its Power to Get Daleiden Indictment?

Attorneys for pro-life activists David Daleiden and Sandra Merritt contend that prosecutorial misconduct, involving collaboration with Planned Parenthood, should disqualify the indictments against the undercover videographers.

Lawyers for pro-life activists David Daleiden (above) and Sandra Merritt say Houston Assistant District Attorney Sunni Mitchell engaged in prosecutorial misconduct by working closely with the legal counsel for Planned Parenthood of the Gulf Coast, which was the target of the grand-jury investigation that resulted instead in the indictments of the pro-life advocates.
Lawyers for pro-life activists David Daleiden (above) and Sandra Merritt say Houston Assistant District Attorney Sunni Mitchell engaged in prosecutorial misconduct by working closely with the legal counsel for Planned Parenthood of the Gulf Coast, which was the target of the grand-jury investigation that resulted instead in the indictments of the pro-life advocates. (photo: Eric Kayne/Getty Images)

HOUSTON — Did the Houston District Attorney’s Office abuse its grand-jury subpoena power in order to help Planned Parenthood not only escape an indictment, but also turn the tables on the two undercover videographers who brought to light the abortion giant’s fetal-tissue practice?

According to attorneys representing Center for Medical Progress undercover-video investigators David Daleiden and Sandra Merritt, Houston Assistant District Attorney Sunni Mitchell engaged in prosecutorial misconduct by working closely with Josh Schaffer, legal counsel for Planned Parenthood of the Gulf Coast, which was the target of the grand-jury investigation that resulted instead in the indictments of the pro-life advocates.

Peter Breen, special counsel with the Chicago-based Thomas More Society, told the Register that a sworn affidavit from Schaffer, contained in the district attorney’s response to the motion to quash the indictments against Daleiden and Merritt, confirms the contention that Mitchell crossed the line into prosecutorial misconduct and illegally colluded with Planned Parenthood’s attorney to get the abortion giant off the hook.

“There were several instances of the prosecutor colluding with Planned Parenthood in this investigation,” Breen said. “You also have instances where the prosecutor divulged and broke the secrecy of the grand jury and the grand-jury indictment — all these instances together are clear evidence of extreme bias and violations of the public’s trust in the grand-jury system and Mr. Daleiden’s rights under Texas law and the Texas and U.S. Constitutions.”

“We contend that all of the illegal actions involved in this indictment fatally taint it,” he said.

The next hearing is scheduled for July 26.


Planned Parenthood Lawyer’s Affidavit

In Schaffer’s affidavit, he explained that he kept in touch with ADA Mitchell, conveyed his belief that Daleiden and Merritt had broken the law by using illegal driver’s licenses, and had asked for the Center for Medical Progress raw video footage of its investigation of Planned Parenthood Gulf Coast’s facilities and employees.

CMP’s videos posted on YouTube alleged the abortion franchise was engaged in an illegal trade of fetal tissue from aborted children. Schaffer stated that he believed the raw video footage would establish Planned Parenthood was not guilty of any crimes. And Mitchell agreed to help get it for him.

Schaffer said he then learned that Mitchell’s office had obtained the raw video footage from the Texas Attorney General’s Office, but with one restriction: “that they not give it to Planned Parenthood.” Even though she had the evidence in hand for the grand jury, Mitchell was still committed to getting it into Schaffer’s hands.

“Mitchell told me that she would try to obtain the footage by other means,” Schaffer added.

Schaffer denied he engaged in any kind of illegal direct collusion and said he assumed that Daleiden had provided it voluntarily to the Houston DA’s office, just as he had provided it to the Texas attorney general. The attorney explained he did not know that Mitchell used a grand-jury subpoena to get the raw video footage into his hands.

“She did not tell me, nor did I consider, that [Daleiden attorney Murphy] Klasing would produce it pursuant to a grand-jury subpoena,” he said. Schaffer said he did not know if the raw video footage was ever presented to the grand jury.


‘Highly Unusual’

That may spell bad news for Mitchell, if she used a subpoena as a means to obtain documentation not for the grand jury — since she already had the raw video footage for the grand jury from the Texas attorney general — but for the target of the grand-jury investigation.

Mary Leary, a professor at The Catholic University of America’s Columbus School of Law, told the Register that it is “highly unusual” — but not necessarily unethical — for a prosecutor to share information with the target of a grand-jury investigation.

“That certainly is outside the norm of practice in many counties,” said Leary, a former assistant district attorney with experience in seeking indictments from grand juries. Since the prosecutor’s aim is justice, not to just obtain an indictment, she said there could be cases in which information is shared between the prosecutor and the attorney of the target of the grand-jury investigation. Often, this arises when that attorney is seeking to avoid what he perceives as a wrongful indictment and wants the opportunity to show the prosecutor where the evidence demonstrates the target’s lack of guilt.

However, Leary, noting that the specific facts of the conversations between the prosecutor and target’s attorney really matter in this situation, added that a judge may have to look into potential possible violations over the manner in which the Houston assistant district attorney obtained the raw video footage that she provided to Schaffer.

Leary said that a judge might be concerned that the ADA abused the grand jury’s subpoena power, which is meant to obtain evidence for the grand jury, not to obtain evidence to share with a third party, such as the target of the investigation. Since Mitchell already had the footage she needed for the grand jury’s investigation — a fact confirmed in Schaffer’s affidavit — that raises the further red flag that she might have gone outside the scope of the subpoena and used it to gather documented information under “false pretenses.”

“That’s a potential problem,” Leary said, explaining that she believes this raises “legitimate questions” for a judge to sort through.

“If it pans out that the prosecutor used the power of a grand-jury subpoena to subpoena documents not for the purpose of presenting them to the grand jury, or not in connection with their investigation, but for some other purpose, that raises some problematic issues for the prosecutor.”

Breen said he and his legal team would be looking more closely at this.

“If the only reason that the assistant district attorney subpoenaed my client was in order to provide [the footage] to Planned Parenthood, then that would be an extraordinary misuse of grand-jury subpoena power,” he said.

“The assistant district attorney took a grand jury that was supposed to investigate Planned Parenthood and used it as a tool to do Planned Parenthood’s bidding,” he said.


Attorney General’s Investigation Compromised?

Harris County District Attorney Devon Anderson, in her response to the defendant’s motion to quash the indictment, denied that the “disclosure of videos or other evidence” to Planned Parenthood obtained via a grand-jury subpoena violated the grand-jury secrecy statutes “properly read and understood.”

“[E]ven if any grand-jury secrecy violations occurred, they did not amount to a due-process violation,” Anderson argued, stating that quashing the “otherwise-valid indictment would not be an appropriate remedy.”

The Houston District Attorney’s Office did not return the Register’s requests for comment.

Breen, however, said the argument that there was no harm done was “outrageous.”

“Secrecy in grand-jury proceedings is a fundamental principle of due process for criminal defendants,” he said. “Moreover, everyone knows, whether you are a lawyer or not, that grand juries are secret, and to violate that fundamental principle so flagrantly, it puts a massive black cloud over this indictment.”

What is even more concerning, Breen said, is that Mitchell’s conduct potentially undermined the Texas attorney general’s own independent investigation by providing evidence that the Texas attorney general had explicitly stated was not to be shared with the target of the investigation.

“Certainly a prosecutor or investigator does not provide the witnesses all of the evidence first, before questioning the witness,” Breen said. “It certainly appears there was an attempt to interfere with the attorney general’s investigation.”

The Texas Attorney General’s Office did not return the Register’s requests for comment.


Right to Life Withdraws Support

The recent revelations about the cooperation between Sunni Mitchell and Planned Parenthood’s legal counsel have drained any remaining benefit of the doubt that Texas Right to Life had for the stated pro-life convictions of Anderson, whom they had endorsed in her last election.

John Seago, legislative affairs director for Texas Right to Life, told the Register that the pro-life group’s political action committee said it can no longer endorse Anderson.

“It seems like, from the beginning, this case was handled incorrectly, and not according to internal best practices at the DA’s office,” Seago said. “And that is something DA Devon Anderson is responsible for; even though she’s claiming she didn’t handle it directly, she had that responsibility,” he said.

“She’s the one running the office.”

Anderson appointed Mitchell to conduct the grand-jury investigation into Planned Parenthood, rather than take the case on herself or assign it to another attorney in her office, even though Mitchell failed to obtain a grand-jury indictment in 2013 against Douglas Karpen, a notorious late-term abortionist.

“Unfortunately, this seems to be a pattern now,” Seago said.

“It seems like, from the very get-go, there was mishandling of examining Planned Parenthood before they shifted and turned to indict the pro-life activists,” he said. In fact, it was Planned Parenthood’s own lawyer, Josh Schaffer, who revealed the disturbing claims that the grand jury never voted on the indictment or called up Planned Parenthood’s employees as witnesses.

“If they would have done their due diligence against Planned Parenthood in the grand jury, and then had a shift, that would be one thing,” Seago said. “But it seems like they did not do their due diligence with what the lieutenant governor told the DA to do, which was to investigate possible wrongdoing of Planned Parenthood.”

Peter Jesserer Smith is a Register staff reporter.