Article Jan 28, 2016

3 Things You Should Know About the Daleiden Indictment

Earlier this week, a grand jury in Harris County, Texas (the county where Houston is located) has indicted two of the undercover videographers associated with the Center for Medical Progress, the group of citizen journalists who filmed undercover meetings with Planned Parenthood (PP) discussing the sale of fetal body parts. The grand jury had also been asked to consider charges against the local PP franchise, but did not issue an indictment.

David Daleiden, 27, the director of the Center for Medical Progress (CMP), has been indicted on second-degree felony charge of tampering with a governmental record and a misdemeanor count related to purchasing human organs. Another CMP employee, Sandra Merritt, 62, was indicted on a charge of tampering with a governmental record.

Here is what you should know to understand this case:

1. The felony charge was over a fake ID

When Daleiden visited the offices of Planned Parenthood Gulf Coast, a regional affiliate franchise of Planned Parenthood of America, he had to pass through a metal detector and show a picture ID. The claim is that Daleiden presented a phony California drivers license with the name of an alias, Robert Sarkis.

For this use of a fraudulent ID, Daleiden was charged with tampering with a governmental document. In Texas, this offense occurs when a person “makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record” and/or “makes, presents, or uses a governmental record with knowledge of its falsity.”

In most cases this offense in Texas is classified as a Class A misdemeanor, punishable by a fine of up to $500 (it does not include jail time).  However, if the intention of tampering with the document is “defraud or harm another” then the offense is a second-degree felony. An individual found guilty of a second-degree felony can be punished by imprisonment for any term of not more than 20 years or less than 2 years. In addition to imprisonment, they may be punished by a fine not to exceed $10,000.

In the Texas legal code, "harm" means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested. The presumption is that through his undercover investigation, Daleiden intended to cause either financial or reputation harm to Planned Parenthood.

2. The misdemeanor charge was for offering to purchase human organs

A few months after meeting with Planned Parenthood Gulf Coast, Daleiden allegedly sent the affiliate a proposed contract offering to pay up to $1,600 per fetal tissue specimen.

The relevant state law is Texas Penal Code § 48.02: Prohibition of the Purchase and Sale of Human Organs:

(a) “Human organ” means the human kidney, liver, heart, lung, pancreas, eye, bone, skin, fetal tissue, or any other human organ or tissue, but does not include hair or blood, blood components (including plasma), blood derivatives, or blood reagents.

(b) A person commits an offense if he or she knowingly or intentionally offers to buy, offers to sell, acquires, receives, sells, or otherwise transfers any human organ for valuable consideration.

(c) It is an exception to the application of this section that the valuable consideration is: (1) a fee paid to a physician or to other medical personnel for services rendered in the usual course of medical practice or a fee paid for hospital or other clinical services; (2) reimbursement of legal or medical expenses incurred for the benefit of the ultimate receiver of the organ; or (3) reimbursement of expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ.

(d) A violation of this section is a Class A misdemeanor.

Under Texas law, a person acts knowingly when he is aware of the nature of his conduct or that the circumstances exist and is aware that his conduct is reasonably certain to cause the result. In this case, the parties invovled would have to undertand that they were knowingly offering to buy or sell the fetal tissue and that money would be exchanged.

If Planned Parenthood Gulf Coast had agreed to accept the $1,600 per specimen, the franchise would have been been guilty of violating this statute since the price offered exceeds genuine fees for reimbursment.

But Planned Parenthood Gulf Coast reportedly never responded to the letter. This is why, as some people have wondered, there is a “buyer” but no “seller.” In Texas, it is a crime to offer to buy fetal tissue even if no seller takes you up on the offer. Because of this, the grand jury could have found probable cause that a crime was committed, even if Daleiden had no intention of actually giving Planned Parenthood Gulf Coast money for the tissue. (Because plantiffs do not present their case directly to the grand jury, the issue of intention would have to be addressed later, usually during the trial or while negotiating a plea bargain.)

[Note: One additional point to keep in mind is that the Harris County grand jury was only considering whether this specific Planned Parenthood affiliate (Planned Parenthood Gulf Coast) was guilty of committing the crime of selling fetal tissue. If other Planned Parenthood affiliates—whether in other states or other parts of Texas—made a profit from selling fetal tissue, it would have no bearing on this particular case. Grand jury investigations in those jurisdictions would have to consider brining charges against those PP franchises. Additionally, if Daleiden made similar offers to buy fetal tissue other Planned Parenthood affiliates, either in other parts of Texas or in other states that have a similar law against selling fetal tissue, he may be brought up on similar charges in those jurisdictions.]

3. Daleiden and Merritt have been indicted, but not yet convicted

It is important in this case to remember the difference between an indictment, which is handed down by a grand jury, and a conviction, which is determined by a trial or plea of guilt.

The grand jury is a jury of citizens that determines whether there is probable cause to believe that a crime was committed and that a specific person or persons committed it. If the grand jury finds probable cause to exist, then it will return a written statement of the charges called an “indictment.” The indictment merely means there is probable cause to believe that a crime has been committed and that the prosecutor can seek to prosecute the accused for the crime.

If the prosecuting attorney decides to move forward on the charges, then Daleiden and Merritt may be able to accept a plea agreement or request a jury of their peers try the case. A state trial would determine whether they would be convicted of a crime and what punishment they would face.

This distinction can affect how we apply both the rule of law and justice to this case. For instance, if the evidence supports the findings and the grand jury came to the right conclusion in determining that there was probable cause to believe that Daleiden and Merritt committed a crime in conducting their investigation, we may argue the indictment was the proper outcome, consistent with the rule of law.

We could also argue that justice requires us to consider the circumstances and motives of the defendants, and that would warrant a lenient sentence or even outright dismissal of the charges when the case moves to a plea bargain or trial.

See also: A conversation with the man behind the undercover Planned Parenthood videos