Planned Parenthood’s legal strategy was in some ways similar to how corporations facing major white-collar criminal investigations often cooperate closely with prosecutors to try to influence the outcome.
From the start, Planned Parenthood and its Houston lawyer Josh Schaffer settled on a strategy of cooperating with investigators, said Rochelle Tafolla, a spokeswoman for the affiliate. It included volunteering documents and encouraging prosecutors to interview employees, as well as giving prosecutors tours of the Houston facility, according to Schaffer.
“We certainly began the process as suspects of a crime, and the tables got turned and we ended up victims of a crime,” Schaffer told Reuters in an interview.
Schaffer was retained by Planned Parenthood last summer when Texas officials demanded it face a criminal investigation after the anti-abortion activists posted videos online purporting to show the organization’s employees discussing the sale of aborted fetal tissue, which is illegal in the United States if done for a profit.
Although what happened during the grand jury’s secret deliberations may never be known, Schaffer said it did not vote on whether to indict Planned Parenthood.
That is because the grand jury’s focus shifted to a case against the anti-abortion campaigners, Schaffer said on a conference call with reporters, citing information he said he received from a prosecutor.
Planned Parenthood said that Daleiden and Merritt used fake driver’s licenses in April 2015 when they posed as executives from a fictitious company to secretly film conversations at the Houston facility. That led to the charges they used fake government documents with the intent to defraud.
One critical juncture in the case may have occurred when Planned Parenthood gave law enforcement an important tip: Merritt’s true name, according to Schaffer.
Her identity remained unknown from the time she visited Planned Parenthood with a fake California driver’s license until about December when Daleiden revealed it during a deposition as part of a separate civil lawsuit in state court in Los Angeles, Schaffer said.
As part of his strategy, Schaffer said he explicitly pushed prosecutors to charge Daleiden and Merritt.
“I made the argument regarding the charges that the grand jury returned,” Schaffer said in the interview, “but I did not have to make them very forcefully because it was self-evident to the prosecutors that they engaged in this conduct.”
Fascinating, and I expect it will just enrage the people who are already losing their minds over this, but as I said before a lie can only be sustained for so long. Sooner or later, you have to put your cards on the table. It’s not like we couldn’t have guessed that these guys were liars – there’s a long evidence trail of people like them saying and doing similar things. It’s not even the first time that DA Devon Anderson has been called upon to investigate some wild claims about an abortion provider that turned out to be complete fabrications and lurid fantasies. It’s one thing to believe these stories even though the objective evidence suggests they’re too outrageous to be true (as Daniel Davies has said, there’s no fancy Latin phrase for giving a known liar the benefit of the doubt), but it’s another thing entirely (as Fred Clark often reminds us) to want to believe them, to fervently hope that they really are true, and to keep on believing them even when any reasonable person knows they are not true.
Which brings us to the fraudsters’ defense attorneys, who have their own impossible things to believe.
“We believe this is a runaway grand jury that has acted contrary to the law,” former Harris County Republican Party Chairman Jared Woodfill told reporters Wednesday. “They’ve gone after the whistle-blowers.”
Woodfill and prominent criminal defense attorney Terry Yates announced they will represent the two activists and said their defense will turn on First Amendment protections afforded to undercover journalists and focus on the activists’ “intent” when they created fake identifications and offered to buy fetal tissue from a Planned Parenthood Gulf Coast office last year.
On Wednesday, Woodfill and Yates conceded that Daleiden, 27, and Merritt, 62, used fake California driver’s licenses to conceal their identities to gain entry to Planned Parenthood offices and corresponded with officials.
“These are techniques that investigative journalists have used for years,” Woodfill said. “If they were to criminalize this conduct, most investigative journalists would be prosecuted for doing the exact same or similar things.”
Fred Brown, an ethics expert for the Society of Professional Journalists, said reporters rarely falsify their identities and said it is “frowned upon.”
“It should be considered a last resort and it’s not really ethical,” Brown said.
Most major newspapers have rules against reporters concealing their identities or using fake names.
Law professor Eugene Volokh would take issue with what Woodfill says, too. It’s interesting to read the story and see how many times they retracted or walked back something they initially asserted. The amount of mental gymnastics they are doing must be quite tiresome.
One more thing:
Daleiden also is charged with trying to purchase human organs, namely fetal tissue, a Class A misdemeanor.
Woodfill scoffed at the charge, saying, “It’s going to be very difficult for prosecutors to say that they intended to actually purchase human body parts.”
Um, wasn’t the whole point of their exercise to prove that body parts were being sold? How could they do that if they didn’t also believe they could buy them? I know, that’s not quite the same as “intent” in a legal sense, but I think their story will be a little harder for a jury to believe if the claim is they were just trying to get Planned Parenthood to give them their price list. Murray Newman, the Wall Street Journal, the Press, Campos, and David Ortez have more.