SAN FRANCISCO (CN) – Anti-abortion activists David Daleiden and Sandra Merritt will go to trial on nine counts of criminal eavesdropping and conspiring to invade the privacy of abortion providers at an industry conference in 2014 and at a Pasadena, California, restaurant.
San Francisco Superior Court Judge Christopher Hite ruled Friday that the California Attorney General presented sufficient evidence at a three-week preliminary hearing in September that the pair committed a criminal offense when they covertly recorded conversations with abortion providers National Abortion Federation’s 2014 meeting at the Westin St. Francis in San Francisco.
Under California Penal Code, a conviction on a single count of eavesdropping on or recording confidential communications carries a fine of up to $2,500, a year in either county jail or state prison, or both.
Daleiden runs the Center for Medical Progress, a group opposed to abortion. Posing as representatives of a phony fetal tissue procurement company called BioMax, Daleiden and Merritt infiltrated the conference using fake IDs and the false names Robert Sarkis and Susan Tennenbaum.
They posted videos of their conversations online as part of the CMP’s “Human Capital Project,” an undercover investigation claiming to show certain abortion providers trying to sell fetal tissue and organs.
Daleiden and Merritt also made recordings of their meetings with abortion providers and stem cell procurers at restaurants in Los Angeles and El Dorado counties.
Hite dismissed four of the charges stemming from those meetings, which took place at CRAFT LA and Bistro 33 in El Dorado Hills, because the four people recorded there “didn’t have an objectively responsible expectation that their conversations would not be overheard.” He also dismissed one charge resulting from a recording made in an elevator at the St. Francis.
But he allowed two counts based on one meeting with two Planned Parenthood doctors at AKA Bistro in Pasadena to go forward, finding “sufficient evidence of a more private setting.” Hite noted that the restaurant “was basically empty” when Daleiden and Merritt met the two women for lunch, and that any view of the conversation would have been obscured by the high-backed structure of the booth.
Deputy Attorney General Johnette Jauron declined to comment Friday, saying only, “The judge made a determination that the restaurant was not private.”
Jauron had also asked Hite to keep the names of the alleged victims private, though many of their names had been publicly disclosed in a civil trial brought against Daleiden, Merritt and the CMP by Planned Parenthood in October.
Hite granted the request but denied Jauron’s additional motion to seal the video recordings, since they had already been played for the public. “They are contraband and evidence of a crime. The defendants should not benefit from being charged with a crime,” Jauron said. “I’m simply requesting that these victims be protected.”
Hite said, “I understand your argument. But this is not grounds to seal exhibits already in the public domain.”
In an interview, Daleiden’s lawyer said he took the ruling as a victory. “This was a significant win today,” said Peter Breen with the Thomas More society, noting that the case which started with 15 counts had been whittled down significantly. One charge was dropped prior to the preliminary hearing, and Hite dismissed five charges Friday, leaving nine remaining. “We’re going to continue to cut it away,” Breen said.
“Today was a great day for us,” said Nicolai Cocis, one of Merritt’s attorneys. Another of her attorneys, Horatio Mihet, added, “We are pleased at the dismissal of the number of counts and we remain confident that the surviving counts will be decided in our favor at trial.”
Daleiden likewise cheered the ruling in a statement. “The remaining charges under the California video recording law – the first and only time it has ever been used against undercover news gatherers – will fall for the same reasons that five charges were dismissed today: these were public conversations easily overheard by third parties,” he said.
Merritt’s and Daleiden’s lawyers have already tried to get the remaining counts consolidated, claiming they should arise from the number of recordings made, not the number of people recorded. Hite denied that motion for now, but the defense will continue to press the issue in pretrial motions.
Daleiden and Merritt are scheduled to be arraigned on Jan. 30, 2020.