Court Dismisses Charges Against Pro-Life Activists, For Now
David Daleiden and Sandra Merritt now face only 1 of original 15 felony charges in California related to undercover videos about fetal tissue procurement.
6:02 PM, JUN 23, 2017 | By CHARLOTTE ALLEN
Even in famously abortion-friendly California there is justice for abortion foes. On June 21, the San Francisco County Superior Court threw out 14 of the 15 felony counts that California Attorney General Xavier Becerra had brought against David Daleiden and Sandra Merritt, the anti-abortion activists who had made widely circulated undercover videos of Planned Parenthood officials haggling and joking over the compensation they expected to receive for supplying the organs of fetuses aborted at Planned Parenthood clinics to for-profit “tissue-procurement” companies.
I wrote about the case for THE WEEKLY STANDARD shortly after Becerra lodged the felony charges on March 28, and it seemed to me more persecution than prosecution. California law forbids the recording of conversations without the consent of all parties involved, so Becerra, a former Democratic congressman from Los Angeles, assigned a separate criminal count to each of 14 secretly recorded conversations that Deleiden and Merritt, posing as tissue-procurers themselves, had had with high-level Planned Parenthood employees at restaurants, abortion conventions, and other venues during 2013 and 2014, and also with the CEO of StemExpress, a Placerville, California, tissue supply firm, that had partnered at the time with some of Planned Parenthood’s Northern California clinics to retrieve fetal body parts onsite. For the statute in question, California Penal Code Section 632, prosecutorial discretion allows charges to be brought as either felonies or misdemeanors. Becerra went the felony route. His aim seemed to be to put Daleiden and Merritt behind bars for as long as legally possible; each separate felony conviction for violating Section 632 could entail a year in state prison plus a hefty fine.
There were always legal issues that could have stood in the way of automatic Section 632 convictions for the pair: How much expectation of privacy—an essential element of a violation of the anti-recording law—did the alleged victims really have in the public places where the conversations occurred, for example. But what really killed the greater part of Becerra’s case, at least for now, was his office’s insistence on keeping secret such key information as the names of the alleged Planned Parenthood victims. Superior Court Judge Christopher Hite ruled that those 14 charges were simply legally insufficient. “The complaint did not provide Merritt with the minimum notice required by the Constitution and California law as to what she supposedly did wrong, so that she can mount a proper and vigorous defense,” her lawyer, Mat Staver of LibertyCounsel said.. “The complaint was also vague and full of inconsistencies.”
Hite gave Becerra’s office until mid-July to file a revised and more detailed complaint, and it will be interesting to see whether the attorney general’s obvious solicitude for the delicate feelings of Planned Parenthood officials will outweigh his obvious desire to throw the book at Daleiden and Merritt. There is also that 15th count: a conspiracy charge against the pair stemming from their use of a former StemExpress employee’s password to log into StemExpress’s email account so as to learn the ins and out of fetal organ procurement.
Daleiden and Merritt had set up a fake corporation they called BioMax Procurement Services, complete with its own website, and they had obtained driver’s licenses for themselves under fictitious names—all so they could set up a vendor’s booth at a National Abortion Federation convention in San Francisco in 2014 and gain the confidence of the Planned Parenthood.