Criminal Hearing Begins Over Undercover Video by Abortion Foes

SAN FRANCISCO (CN) – A nurse practitioner formerly with Planned Parenthood testified in court Tuesday that she never expected to be covertly videotaped at the National Abortion Federation’s annual meeting.

“I believe it’s a protected place where we can speak freely about our work,” said the nurse, identified in court as Doe 7 – one of 14 people whose conversations anti-abortion activist David Daleiden furtively recorded discussing the procurement of fetal tissue.

David Daleiden, an anti-abortion activist charged with invasion of privacy for filming attendees at National Abortion Federation conferences in California.

Daleiden and co-defendant Sandra Merritt are each charged with 15 counts of felony invasion of privacy, accused of creating the fake company BioMax and posing as phony procurers of fetal tissue.

Using the pseudonyms Robert Sarkis and Susan Tennenbaum, they infiltrated and recorded abortion providers from Planned Parenthood at the National Abortion Federation’s annual meetings in 2014 and 2015 in San Francisco, Los Angeles and El Dorado, California.

Tuesday marks the first time any of Daleiden’s videos have been played in open court, kicking off a nine-day preliminary hearing in which the California Attorney General’s office will try to convince a state court judge to take their case against Daleiden and Merritt to trial.

“This preliminary stage is the put-up-or-shut-up stage,” said attorney Horatio Mihet, representing Merritt. “What today has revealed is the prosecution by the attorney general is political in nature and built on a house of cards.”

One video played Tuesday shows the ballroom at the Westin St. Francis in San Francisco, narrow, dimly lit and packed. A person wearing a hidden recording device approaches a woman in a black dress. “We’re from Biomax procurement services, we’re a tissue collection company,” says an unseen male voice.

The woman – Doe 7 – replies warmly and gives her name. The male voice asks about a contract with a company StemExpress. The woman says she cannot help him but gives the names of Planned Parenthood’s medical director and chief of staff. The conversation lasts only a few minutes.

“Did you know that video had been taken?”  Deputy Attorney General Johnette Jauron asked Doe 7 on direct.

“Definitely not,” she answered, adding: “Everyone signs a confidentiality agreement and it’s assumed that it’s a safe space.”

Melissa Fowler, vice president of external relations for the National Abortion Federation testified the trade group goes to great lengths to protect attendees’ identities. They post security guards around the meeting rooms and exhibit hall. They ask attendees to always wear badges but never outside the confines of the conference space. They even ask attendees not to leave their badges or conference materials around their hotel rooms.

“It’s all to protect the safety and security of our meeting. We don’t want abortion opponents to target our members,” Fowler said, noting some had received death threats. “Some of our members are not even out to their families about their work.”

A retired abortion provider who also testified Tuesday said she felt like the meeting space was “the safest space you’re in all year.”

Doe 3, who received death threats when she performed abortions in Wichita, Kansas, and Albuquerque, said, “I remember walking into a NAF conference and thinking I don’t have to look behind me here.”

Attendees, speakers and exhibitors at the three-day conference in April 2014 had all signed confidentiality agreements prohibiting them from divulging details about the conference to anyone not in attendance.

Cross-examining Doe 7, Merritt’s attorney Horatio Mihet pointed out various people in the video passing well within earshot as she talked to Daleiden. He asked: “Did you lower your voice? Did you take any precautions to make sure these individuals didn’t hear you?”

Doe 7 replied that she had not, because the federation had taken the precautions with its confidentiality agreement. She also said the group had strictly prohibited recording of any kind.

Outside the courtroom, Daleiden’s attorney Peter Breen said California’s penal code, enacted under the California Invasion of Privacy Act, excludes any conversation that can be reasonably overheard or recorded.

“None of the content was confidential,” he said.

He added Daleiden – who founded the Center for Medical Progress – is an undercover journalist and should be protected by California’s shield laws.

On cross, Breen asked Doe 7 if she had ever committed any “violent acts.”

“I do not believe I have committed any violent acts,” she said, appearing confused by the question.

In an interview outside the courtroom, Breen elaborated this is another defense to taping under state law. He claimed selling fetal tissue from a patient who did not consent to such a sale is medical battery.

“If a person taping has a reasonable belief that they’re collecting evidence related to violent felonies, they’re OK,” he said, adding, “If you can get any counts thrown out, it’s a win.”

Testimony continues Wednesday, where the defense will cross-examine Doe 3 on procedures like dilation and extraction, which abortion foes call partial-birth abortion.

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