SAN FRANCISCO (CN) – In a case that tests the limits of citizen journalism, a state prosecutor attacked the undercover methods anti-abortion activist David Daleiden used in his multiyear investigation of Planned Parenthood.
Daleiden took the stand again Monday as a preliminary hearing to determine whether he and a colleague should be put on trial on charges of eavesdropping and invasion of privacy stretches into its third week.
Daleiden claims he and co-defendant Sandra Merritt were documenting fetal tissue trafficking for medical research as part of an investigation called the Human Capital Project.
Using the pseudonyms Robert Sarkis and Susan Tennenbaum, the pair infiltrated and used hidden cameras to record abortion providers from Planned Parenthood at the National Abortion Federation’s meetings in 2014 and 2015 in San Francisco, Los Angeles and El Dorado, California. They also met with and covertly recorded abortion doctors and stem cell procurers at restaurants in El Dorado and Los Angeles. Those videos were later posted online and sparked a furor against Planned Parenthood.
“Did part of those techniques include lying?” Deputy Attorney General Johnette Jauron asked Daleiden on cross-examination.
“Lying means different things to different people,” Daleiden said, later clarifying, “I knew I could do a more accurate and insightful investigation if I used undercover pretext.”
Recording people without their consent is a felony in California. Daleiden claims he was well-acquainted with California’s Recording Law and consulted with multiple attorneys as he prepared to launch his project. Jauron targeted those consultations in her questioning.
“Which lawyers told you it was OK to record people in California without their consent?” she asked.
Daleiden named at least six attorneys from conservative law firms like the Thomas More Society and Alliance Defending Freedom. Daleiden said they told him “nothing in California prohibited recording a nonconfidential communication.”
“In your consultations with these lawyers, surely someone told you abortion is not homicide in California,” Jauron said.
Daleiden answered, “I never described legal induced abortion as homicide. I was referring to fetuses being born alive. I was asking about the infanticide aspect.”
Jauron characterized Daleiden’s efforts as a campaign to damage Planned Parenthood’s reputation in the public eye. Reading from his project proposal, she asked, “Isn’t it true you wanted to 'polarize Planned Parenthood and their associates as enemies in the public eye and generation a reaction to them?’”
Daleiden said he used the term “enemies” sarcastically in the proposal to illicit donations for the project, and that it was “not a public call to action.”
He said he suspected some Planned Parenthood affiliates of changing their abortion procedures to secure the most valuable fetal tissue for medical research and believed whole organs, and perhaps even whole fetuses, were being harvested from certain clinics.
Jauron noted no one ever said they had changed their abortion techniques without patient consent in the hours of footage Daleiden and Merritt obtained from the conference and restaurant meetings. She said that most of the discussions involved Daleiden “asking a lot of hypothetical questions.”
She also focused on the National Abortion Federation’s exhibitor agreement, which Daleiden signed prior to attending as Robert Sarkis, a representative of the phony tissue procurement company BioMax. The agreement, she quoted, said “all information is confidential and should not be disclosed to any third parties."
“Yes, I saw that paragraph,” Daleiden said.
Under questioning from defense attorney Horatio Mihet, Daleiden said he and Merritt were careful not to record in a way that would violate California law by sticking to hotel common areas and public sections of restaurants.
“I tried to keep recordings within the boundaries of California law as I understood it,” he said.
On Tuesday, Daleiden told the court that he understood conversations with the CEO of StemExpress and two of her employees over dinner on May 22, 2015, were not confidential, noting the close proximity to other patrons and the volume of the discussion.
Mihet played a clip of the meeting where Sandra Merritt asked if she was speaking too loudly, and one StemExpress representative told her she was not. Daleiden also testified he did not receive a nondisclosure agreement from StemExpress until June 18, nearly a month after the meeting took place but before he published the video of it.
Agents with the California Department of Justice raided Daleidens’ home in April 2016, seizing several computers and hundreds of hours of video footage, along with mockups for BioMax business cards and phony identification documents. Daleiden’s attorneys have challenged the probable cause behind that warrant, asserting Daleiden is entitled to protection under California’s Shield Law for acting as a citizen journalist.
Hite declined to quash the warrant Tuesday, finding “there was sufficient probable cause in the warrant that Daleiden was engaged in criminal activity irrespective of his journalistic status and that the items seized were related to the criminal activity.”
In court Tuesday, Hite seemed particularly interested in Daleiden's written reports to law enforcement agencies in El Dorado County and Orange County, as well as attorneys general in Texas, Michigan, Arizona and Oklahoma. Most replied they would investigate Daleiden's claims but did not respond further. Daleiden told Hite his report led to a $7.8 million civil settlement in 2017 that seized all profits that medical companies DaVinci Biosciences and DV Biologics received from the sale of fetal tissue donated by abortion clinics.
After Daleiden released his tapes in July 2015, a grand jury in Harris County, Texas, convened to investigate a Planned Parenthood affiliate in Houston. They cleared the clinic of wrongdoing and instead indicted Daleiden and Merritt for felony tampering with a government record and a misdemeanor related to the purchase of human organs. Those charges were later dismissed.
The proceedings are expected to wrap up Tuesday with testimony by two defense experts. Both sides will submit written closing statements, which the defense said it will file by Sept. 27, after which prosecutors will have several days to respond.
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