Judge Cites Anti-Abortion Activist’s Attorneys for Contempt

SAN FRANCISCO (CN) – A federal judge said Tuesday he will hold anti-abortion activist David Daleiden’s lawyers in contempt of court for publishing videos of a National Abortion Federation annual meeting, in violation of an injunction.

“Criminal defense counsel … do not get to decide whether they can violate the preliminary injunction,” U.S. District Judge William H. Orrick III told the attorneys in court.

Daleiden’s attorneys, Steve Cooley and Brentford Ferreira, said they needed to put the videos in the public record to support Daleiden’s challenge of 15 state felony charges.

“We take criminal defense seriously,” said attorney Matthew Geragos, representing Cooley and Ferreira. “Mr. Daleiden is entitled to a zealous and vigorous defense.”

But Orrick said that determination is up to the judge presiding over Daleiden’s case in San Francisco Superior Court — not Daleiden’s attorneys.

“If the state court judge thinks those materials are necessary to provide a full and fair defense, I have no problem with that,” Orrick said.
Orrick in February 2016 issued an injunction barring Daleiden and his group, the Center for Medical Progress, from publishing secretly taped videos of the National Abortion Federation’s annual meetings. Orrick found the safety and privacy of the federation’s members outweighed Daleiden’s First Amendment right to publish information obtained under false pretenses.

Daleiden and others posed as members of a fake biomedical company to infiltrate the meetings.

In March, the California attorney general charged Daleiden and his colleague Sandra Merrit with 15 felony charges for secretly recording 14 people associated with Planned Parenthood and conspiring to invade their privacy.

Daleiden’s attorneys say their client has a right to publicly confront his accusers, even if abortion providers face death threats and harassment as a result of being publicly identified.

At the end of Tuesday’s contempt hearing, Orrick ordered Daleiden to turn over 144 hours of the banned videos to attorneys representing him in the federal civil lawsuit. Orrick said Daleiden and his group may review those materials for defense purposes so long as they remain in the custody of the attorneys.

Absent such an order, National Abortion Federation attorney Derek Foran said, the parties would probably be back in court again, arguing over Daleiden’s unauthorized disclosure of court-barred materials.

Foran said Daleiden created a 3-minute preview video with the recordings, which was posted on the National Review’s website on May 25. Foran and the federation claim the video has all of Daleiden’s “hallmarks,” including ominous music and misleading editing to imply wrongdoing.

“David Daleiden’s fingerprints are all over this thing like a murder scene,” Foran told the judge.

Daleiden refused to say whether he created that video. He and his attorneys declined to answer all the questions Orrick asked on Tuesday, citing attorney-client privilege.

Daleiden’s attorney Paul Jonna said that though his client would not deny creating the video, the court lacks evidence that he did make it, so his client should not be held in contempt of court.

Orrick did not precisely indicate whether Daleiden and his group would also be held in contempt, like his defense attorneys. But he did order Daleiden and his defense attorneys to pay damages to the federation.

The federation seeks to recover litigation costs for the contempt proceedings and expenses for increased security measures adopted to protect abortion providers whose identities were exposed by the leak of videos and names.

At the end of the hearing, Geragos asked Orrick to stay his ruling for 30 days so the defense attorneys can file an appeal.

Orrick said he would consider that request, though he was “not inclined” to grant it.

He said he would issue a written ruling “shortly.”

Daleiden and his attorneys have tried to recuse Orrick from the case, arguing that his wife’s Facebook posts and his previous work for a health center that hosts a Planned Parenthood clinic made him unfit to preside.

U.S. District Judge James Donato in June denied the motion to disqualify Orrick.

Also in June, a judge dismissed all but one charge of conspiracy against Daleiden and his co-defendant in the criminal case in San Francisco County Superior Court.

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