David Robert Daleiden, an anti-abortion activist facing felony charges for his role last year in secretly videotaping Planned Parenthood officials, was offered a deal Thursday that practically guaranteed he would not spend a day in jail.
Instead, the 27-year-old Californian decided to take a gamble by fighting the charges which could carry a 20-year prison sentence. In a black suit and dark blue shirt, Daleiden and his attorneys said they would take the case all the way to trial.
The bold move surprised prosecutors and energized supporters who waved signs and stood behind Daleiden and his attorneys as they addressed reporters outside of Houston’s criminal courthouse.
“The only thing we’re going to accept is an apology,” said Daleiden’s defense attorney Terry Yates. “We believe the indictments are factually and legally insufficient.”
Harris County District Attorney Devon Anderson responded that she has offered the videographer and his associate, Sandra Susan Merritt, 62, of San Jose, Calif., an “exit from their legal predicament.”
She also accused the activists of using their criminal charges to grandstand in a case that has drawn national attention due to heated opinions on both sides of the abortion debate.
“Currently, no evidence has been presented to me that gives me legal grounds to dismiss the indictments against Mr. Daleiden and Ms. Merritt,” she said by email. “Among those familiar with criminal prosecution, my offer would be immediately accepted as ‘an offer you can’t refuse;’ unless of course, your goal is not to avoid prosecution, but rather to keep the circus going and going.”
Among those familiar with criminal prosecution, my offer would be immediately accepted as ‘an offer you can’t refuse;’ unless of course, your goal is not to avoid prosecution, but rather to keep the circus going and going.
Harris County District Attorney Devon Anderson
Anderson, a pro-life Republican, has repeatedly answered questions about the case by saying “the inconvenient truth of a criminal investigation is that it doesn’t always lead where you want to go.”
The Harris County Grand jury that indicted Daleiden, 27, of Davis, Calif., and Merritt on felony charges for using fake drivers licenses to surreptitiously meet and videotape officials at Planned Parenthood of the Gulf Coast had been convened to investigate Daleiden’s allegations.
Instead of filing charges against the organization after a two-month investigation, the grand jury last week cleared officials of any wrongdoing and instead indicted the accusers.
After Daleiden turned himself in Thursday and was offered probation, his lawyers said they would not accept anything but a dismissal and an apology.
“It’s unusual because a pre-trial diversion is a pretty sweet outcome for an alleged felony,” said Geoffrey Corn, a professor at South Texas College of Law. He said Daleiden could have several reasons for refusing the offer, including believing that the law is not justified, that a jury would never convict him or that being convicted would add significance to his anti-abortion crusade.
“This guy thinks that what he did is morally justified,” Corn said. “Every now and then you encounter a defendant who, for whatever reason, says ‘I don’t believe in the law.’”
On Thursday, Daleiden appeared in court, smiling, with a bevy of lawyers. He was not taken into custody and did not face state District Judge Brock Thomas. Daleiden sat in the gallery as his lawyers spoke to prosecutors at the bench.
Assistant Harris County District Attorney Britni Cooper said Daleiden would be offered pre-trial diversion, a lenient form of probation, generally reserved for low-level misdemeanor first offenders-like shoplifters.
The grand jury also charged Daleiden with the same misdemeanor he had alleged – the purchase or sale of human organs, presumably because he had offered to buy organs in an attempt to provoke Planned Parenthood employees into saying they would sell them. Pre-trial diversion would take care of that case as well.
After the court appearance, Daleiden’s attorneys said they would not accept the offer. They said they believe they can get the indictments thrown out, although they would not outline the reasons behind a motion to quash. They also said they were prepared to go to trial if the case is not dismissed. To emphasize that they are doubling down on a strategy to get the indictments tossed, they also demanded an apology from Anderson.
On Thursday, Eric Ferrero, Vice President at Planned Parenthood Federation of America, encouraged other law enforcement agencies to investigate Daleiden and Merritt.
“We don’t expect this to be the last time these extremists are booked and fingerprinted,” he said in a prepared statement. “These people broke multiple federal laws and violated the law in at least four states, all in order to spread lies about Planned Parenthood.”
In front of Houston’s criminal courthouse, Daleiden and his supporters continued to claim that the organization illegally profited from the sale of fetal tissue.
“Every day that goes by that the Texas authorities do not prosecute Planned Parenthood for their illegal trade in baby parts, they are sending a message to the entire country that the state of Texas right now is open for business in baby body parts,” Daleiden said.
His attorneys, Yates and Jared Woodfill, have said their primary defense is that Daleiden was using a fake ID as a “citizen journalist” doing the same undercover work that investigative reporters do.
“There are huge protections under the First Amendment that are afforded to David,” Woodfill said. He said Daleiden employed the same undercover methods as reporters like Mike Wallace from “60 Minutes” or Upton Sinclair, who wrote “The Jungle” in 1906.
“They sure misrepresented themselves to expose the truth, and that’s what happened here,” Woodfill said.
Experts in media ethics have said reporters rarely falsify their identities and said it is “frowned upon” because it is not ethical.
Most major newspapers have rules against reporters concealing their identities or using fake names.
Merritt, Daleiden’s associate, turned herself in Wednesday and was offered the same deal. Dan Cogdell, her attorney, said he has no plans to agree to anything less than a dismissal but is filing a discovery motion to look at the evidence in the case before deciding.
“I don’t think any lawyer in their right mind would agree to take the deal without looking at the evidence,” said Cogdell.