David Daleiden and Susan Merritt’s sting videos revealed that Planned Parenthood was likely committing felonies at the Gulf Coast Planned Parenthood in Houston by selling fetal body parts for profit. But the Harris County District Attorney, Devon Anderson, brought charges not against Planned Parenthood but against Daleiden, Merritt and their Center for Medical Progress.

The move raised more than a few eyebrows, and Anderson, elected in 2014 with the endorsement of Texas Right to Life, has now released a short video insisting that she and the grand jury were driven to issue the draconian charges by the strictures of law and ethics. If you don’t have a background in the law, her explanation sounds persuasive. But I do have such a background, and while we may never know what motivated the DA, rest assured that neither the law nor ethics made such a move inevitable. Far from it.

Recall what Daleiden and Merritt’s investigation uncovered: Melissa Farrell, Director of Research for Planned Parenthood Gulf Coast, admits in one of the videos that Planned Parenthood is altering their abortion procedures to increase the likelihood of getting intact fetuses to sell. She says, “Yeah, and so if we alter our process, and we are able to obtain intact fetal cadavers, then we can make it part of the budget, that any dissections are this — it’s all just a matter of line items.”

In another video, Farrell says to a technician regarding the clinic selling fetal body parts: “Any idea why the other affiliates in Texas think it’s illegal?” She agrees with the undercover videographer that “it’s gold out there” in terms of making money from selling the fetuses. It’s legal to recoup cost; it’s illegal to make a profit over and above costs. And yet AP reports, quoting a Planned Parenthood attorney, that the grand jury may never even have voted on possible criminal charges against Planned Parenthood.

The Misdemeanor Charge

Daleiden has been slapped with both felony and misdemeanor charges. First the misdemeanor charge, which is bizarre in its own right. Daleiden is being charged with a misdemeanor for violating the state’s “prohibition of the purchase and sale of human organs” — the activity he was trying to stop. He faces up to a year for the misdemeanor. He has maintained that his investigative journalism and undercover work complied with all laws.

Daleiden, who says he is the child of a crisis pregnancy, clearly never intended to go through with the sale. He posed as a buyer to do the undercover videos. But there is every reason to believe Planned Parenthood did intend to go through with the sale. As Hans von Spakovsky writes, “A private individual whose only intent is to expose possibly illegal activity is under indictment for actions in connection with an undercover video operation, but the illegal actor itself — Planned Parenthood — is off the hook.” Or as The Federalist’s Sean Davis tweeted, “I’m a little confused here. If PP wasn’t selling anything, how could CMP possibly be buying something?”

Also, if Daleiden can be charged for attempting to purchase fetal body parts, what about those organizations who are actually purchasing them, like StemExpress, whose CEO Daleiden recorded on video discussing the purchases?

The grand jury didn’t even pay attention to the law, Spakovsky points out:

Crucially, the Texas statute also has a clear intent standard: A violation requires the grand jury to find that CMP made its offer to buy “knowingly and intentionally.” Given that the grand jury knew that all of these videos were part of an undercover sting operation intended solely to show what Planned Parenthood was doing; that CMP was not actually in the business of purchasing organs like one of Planned Parenthood’s other partners, StemExpress; and that it was a fake offer, how could the grand jury possibly conclude that this intent standard was met? It is highly likely that no reasonable jury would ever convict under these admittedly unusual factual circumstances.

The Felony Charge

More seriously for them, Daleiden and Merritt also have been charged and indicted for the second-degree felony charge of “tampering with a governmental record,” and are facing up to 20 years in prison for using false drivers’ licenses the pair created.

The grand jury “simply followed the evidence,” Anderson said in her statement. “The defense attorneys also said that the ‘Tampering with a Governmental Record’ cases should not have been charged as a felony since young people who are caught with fake IDs typically face misdemeanor charges. But under Texas Law, if a person uses a fake ID from another state, it is a felony charge. That’s the law.”

All the same, the charges were unnecessary, and overblown. Illegal immigrants are arrested frequently with fake drivers’ licenses and don’t face 20 years in prison.  Some aren’t even charged but are merely deported — including for crimes much worse than possessing a fake driver’s license. Illegal immigrants arrested at a meatpacking plant in Iowa a few years ago were allowed to plead “guilty to document-fraud charges rather than risk being convicted at trial of the identity-theft charge.”

Texas Penal Code §521.451 states that possessing a fake or altered drivers’ license is a misdemeanor with a penalty of up to 180 days in jail. Prosecutors could have charged the pair with that instead of the felony. The felony law — which is one of the toughest in the nation — was meant to be used against people committing serious crimes of theft or fraud, not to punish investigative journalists.

Anderson argues that she was just following Texas law, which considers the use of fake government ID from another state to be a felony. But prosecutors will often pursue a lesser charge when the biggest charge seems too great for the crime. This is common and accepted legal practice. Even left-wing Mother Jones columnist Kevin Drum, a critic of the Planned Parenthood videos, criticized the indictments:

As much as I dislike what Daleiden did … Texas law seems to make it almost inherently illegal for a reporter or anyone else to try to expose illicit activity. That’s often going to require a solicitation to commit a crime; it’s frequently going to require some kind of bogus ID; and it’s pretty much always done with an intent to harm. But if you put those together, you’ve automatically got a felony, even if the target of your investigation turns out to be a mafia front.

How Could This Happen?

How could undercover journalists get indicted for a crime they didn’t commit — or at least didn’t commit in the way or with the intent the law’s creators had in mind — and a giant non-profit not get indicted for a crime it almost certainly did commit, and in exactly the way the creators of the law had in mind? Complicating matters is that Anderson insists she is pro-life. “Anyone who pays attention knows that I’m pro-life,” she says in her video statement. “I believe abortion is wrong.”

 

 

Another challenge is that the grand jury proceedings are mostly a black box, so any explanations at this stage must rest on conjecture and following smoke. But there is smoke.

First, Planned Parenthood reportedly has a cozy relationship with the DA’s office. One of the the prosecutors there, Lauren Reeder, has been very active with Gulf Coast Planned Parenthood, including serving on its board of directors and running fundraising galas. In her video defense, Anderson said that Reeder was a new attorney who would not have been involved in this case and was also one of 300 prosecutors in the office.

There are other connections. In 2013, local abortion doctor Douglas Karpen was reported to be performing illegal late-term abortions. Employees stated that he would kill live babies by snipping their spinal cord or twisting their necks. Even with this strong evidence, the grand jury under Anderson dismissed the charges against him. It didn’t even go to trial despite eyewitness testimony. Investigative blogger Don Hooper reported that Karpen’s attorney, Chip Lewis, was a big contributor ($15,000 of the $283,000 she raised) to Anderson’s campaign for DA.

Indicting a Ham Sandwich

Prosecutors have plenty of ways to manipulate the system. Law professor Glenn Reynolds, who runs the blog Instapundit, has written an article explaining how prosecutors are able to get a grand jury to “indict a ham sandwich.” Part of the problem is “the proliferation of federal criminal statutes and regulations has reached the point where virtually every citizen, knowingly or not (usually not) is potentially at risk for prosecution.” Reynolds explains how prosecutorial discretion is abused:

Attorney General (and later Supreme Court Justice) Robert Jackson once commented: “If the prosecutor is obliged to choose his cases, it follows he can choose his defendants.” This method results in “[t]he most dangerous power of the prosecutor: that he will pick people he thinks he should get, rather than pick cases that need to be prosecuted.” Prosecutors could easily fall prey to the temptation of “picking the man, and then searching the law books . . . to pin some offense on him.”

Reynolds relates another revealing story, this one by journalist Tim Wu, who in 2007 told how “a popular game in the U.S. Attorney’s Office for the Southern District of New York” was to think of some famous person, such as John Lennon or Mother Teresa, and then decide how you could successfully prosecute the person. Wu continues in his article in Slate:

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: “prison time.”

So two investigative journalists create fake IDs to do sting video interviews of groups doing heinous and likely felonious things involving the body parts of aborted babies. But, wait, the fake IDs the investigative journalists used were from another state and — voila! — felony time.

So How Did Planned Parenthood Get Off?

It is not clear how Planned Parenthood got around the damaging evidence on the videos. What happened during those grand jury proceedings? We don’t know, because they are secret, though if prosecutorial abuse is bad they can be unsealed.  Texas Governor Greg Abbott said the organization is still under state investigation by the Texas Health and Human Services Commission and Texas Attorney General Ken Paxton.

The grand jury process may be easily manipulated, but Daleiden and Merritt should have a better chance during the regular jury trial, where everything is out in the open. Their attorneys have asked the DA to drop the charges. The public outcry is not going to stop. The bizarre indictment sounds very similar to previous overreaching indictments of conservatives in Texas by the famously liberal Travis County DA’s office,  including the targeting of former House Majority Whip Tom DeLay and the current prosecution of former Texas Governor Rick Perry.