Where the Indicted Anti-Abortion Activists May Have Gone Wrong

planned parenthoodDavid Daleiden, the abortion foe who sought to expose alleged crimes by Planned Parenthood in Houston, Texas, is instead charged with two crimes. The most serious, tampering with a governmental record is based on a fake driver’s license apparently used as identification. It carries a sentence up to 20 years in prison. The other is a misdemeanor charge related to the sale or purchase of human organs. It carries up to a year in jail.

Soon after the charges were announced, Daleiden, a leader of the Center for Medical Progress, reacted, in part, with this statement: “The Center for Medical Progress uses the same undercover techniques that investigative journalists have used for decades in exercising our First Amendment rights to freedom of speech and of the press, and follows all applicable laws.”

It is true that investigative journalists use hidden cameras as did Daleiden and another staffer, Sandra Merritt, also indicted for tampering with a governmental record, when they captured conversations with Planned Parenthood executives. But the hidden camera itself wasn’t the problem. Since the grand jury action does not include charges related to illegal recordings, it appears that Daleiden and Merritt did follow the law as far as the actual recording was concerned.

Texas is a one-party consent state. That means Daleiden and Merritt did not need the approval of Planned Parenthood in order to record the conversations. They were also apparently careful to record in a place permitted by law–—in a public area where there was no reasonable expectation of privacy. In order to surreptitiously record in an area where one expects privacy, a court order is required. This is a valuable tool for law enforcement but off-limits to the rest of us.

What’s not allowed is this: You can’t commit crimes in an effort to expose other alleged crimes. That’s where Daleiden and Merritt may have  failed. In a weird twist, the video they hoped would expose wrongdoing appears to be critical evidence that led to their own charges, particularly the misdemeanor of trying to purchase fetal organs. Rather than return an indictment charging Planned Parenthood with the sale of fetal organs, the Harris County grand jury indicted Daleiden with trying to buy fetal organs. Because of grand jury secrecy laws,  the exact details of the investigation and evidence are still not public.

As Harris County District Attorney Devon Anderson said: “[W]e must go where the evidence leads us.” Harris County may have closed its investigation into Planned Parenthood, but investigations by the Texas Attorney General and the Texas Health and Human Services Commission continue.

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