Under pro-Planned Parenthood Attorneys General Kamala Harris (D-Calif.) and Xavier Becerra (D-Calif.), David Daleiden and Sandra “Susan” Merritt faced criminal prosecution for their Planned Parenthood sting videos revealing the alleged selling of aborted baby body parts for profit. On Monday, Daleiden and Merritt were scheduled to appear in a hearing. The California Supreme Court stayed the entire prosecution at the last minute on Friday.
Merritt’s attorneys filed an appeal to the state’s Supreme Court, and that appeal was granted. The temporary stay applies to both Merritt and Daleiden, who is represented by the Thomas More Society.
“We are very grateful for this welcome development and hopeful that the California Supreme Court will decide to hear and decide the very critical issue raised in this appeal, namely, whether a prosecutor may exercise his or her powers to enforce the criminal laws selectively with a view toward helping his or her political sponsors and allies and against political opponents, or rather whether he or she should act even-handedly and apply the law fairly and with equal consideration for all, without bias or favoritism,” Tom Brejcha, president of the Thomas More Society and one of the attorneys for Daleiden, said in a statement.
“Here, the earmarks of bias and discrimination are all too glaringly apparent, as Mr. Becerra — like his predecessor, Kamala Harris, now the Junior Senator from California — took office while proclaiming, ‘I stand with Planned Parenthood,'” Brejcha added. “At least, the Attorney General should step aside so that an unbiased prosecutor may decide whether this prosecution — an attack on undercover journalism, which is a common and critical tactic used by news-gatherers as is regularly, even routinely employed and shown in California print and broadcast journalism, that represents an unprecedented use of the state’s anti-eavesdropping law — should go forward. Or else, based on evidence of bias already adduced, the case should be dismissed.”
The Thomas More Society has been defending Daleiden across the country as Planned Parenthood Federation of America, along with its affiliates, and the National Abortion Federation have brought civil lawsuits against him. Pro-abortion officials have pressed criminal charges against him — in this case in San Francisco and another in Houston, Texas. In the Houston case, all charges were dismissed.
Attorney General Becerra is prosecuting Daleiden, taking over from his predecessor Kamala Harris. Both have supported Planned Parenthood and have received campaign donations from the organization. Becerra’s election victory party was sponsored and hosted by Planned Parenthood.
Becerra is pressing fifteen felony counts for violation of California’s anti-eavesdropping law (14 counts) and conspiracy (1 count). The delay in trial proceedings will last until all seven California Supreme Court justices have reviewed the defense petition and decide whether to hear the appeal.
The appeal claims that the trial court erred in refusing to grant the defendants the opportunity to have an evidentiary hearing to prove that, under California law, the charges against them were politically biased and ought to be dismissed.
The hearing scheduled for Monday would have probed whether Becerra could present enough evidence to require Daleiden and Merritt to defend themselves at trial. If the attorney general did not have evidence to meet the “probable cause” standard, some of the 15 felony counts would be dropped. The hearing would have marked the first time that the anonymous abortion industry witnesses — who were videotaped — testified in open court.
Besides the clear political bias at play in this case, Brejcha also highlighted some procedural abuses that deprived Daleiden and Merritt of their rights.
“There are other issues at stake in this case that are fundamental and rise to Constitutional dimension. The court had entered an unprecedented order allowing private counsel for the complaining witnesses to participate in this criminal trial, whereas criminal prosecution is reserved for public officials, namely, state prosecutors whose duty is to represent all of ‘the people,’ not private parties or their partisan interests,” the Thomas More Society president explained.
“The abortion industry representatives have also been allowed to proceed anonymously, and the court was set to prohibit the video evidence from being shown in public, after its viewing in open court. Any photographs, broadcast, or publication of the proceedings was barred, curtailing Daleiden and Merritt’s rights to a public trial and to confront and cross-examine their accusers,” Brejcha added.
“Worse, exonerating evidence favorable to the defense has been withheld and barred from use in the criminal case,” the lawyer explained. “This is a result of rulings by San Francisco Federal Judge William Orrick suppressing that evidence. These restrictions have put Mr. Daleiden and his entire legal team into a straitjacket, as we are forced to defend against these serious felony charges while denied access to key evidence that would acquit our client.”
“Likewise, California’s Attorney General has flouted his own duty, under both federal and California’s own constitutional principles, to secure and provide this critical evidence to the defense. These rulings flout the laws that direct federal courts to keep ‘hands-off’ state court criminal proceedings. These criminal felony charges are meritless and must be dismissed,” Brejcha concluded.
Kamala Harris, who is running for the 2020 Democratic presidential nomination, should pay a hefty price for launching this prosecution against Daleiden. Prosecuting a journalist for undercover reporting sets a dangerous precedent for free speech and the freedom of the press. Yet Harris and her successor Becerra have weaponized the complaints of Planned Parenthood, chilling pro-life speech.
The California Supreme Court should take up this case, and at the very least remove Becerra from the prosecution.
Correction 4/23/2019 1:00 p.m. Eastern: An earlier version of this article said the appeal to the California Supreme Court was filed by the Thomas More Society. It was filed by Merritt’s attorneys. The error has been corrected.
Follow Tyler O’Neil, the author of this article, on Twitter at @Tyler2ONeil.
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