No Gag Order in Criminal Proceedings Against Abortion Foes

SAN FRANCISCO (CN) – The state trial judge overseeing the criminal invasion of privacy case against anti-abortion activists David Daleiden and Sandra Merritt refused Wednesday to issue a gag order preventing their attorneys from speaking to the press.

Wednesday’s proceedings turned into a First Amendment showdown as Deputy Attorney General Johnette Jauron sought to limit statements from being made outside court until the conclusion of the multiweek preliminary hearing.

San Francisco Superior Court Judge Christopher Hite will decide at the end of the hearing whether Daleiden and Merritt will face trial on charges secretly taping abortion doctors and human stem cell procurers. The pair face 15 felony counts each of eavesdropping and invasion of privacy.

Jauron said the order was necessary to protect witnesses’ safety. One witness, identified only as Doe 12, claims to have been followed and attacked after testifying last week about being recorded at a dinner meeting with Daleiden and Merritt about a potential business partnership in procuring fetal tissue for medical research.

Daleiden and Merritt posed as Robert Sarkis and Susan Tennenbaum from BioMax Procurement Services, a fake company they used as a cover with Doe 12 and others at the meeting.

“This victim has been singularly targeted and subjected to harassment. She is in fear for her life,” Jauron told Hite on Wednesday. “Her company has been subjected to numerous calls and emails based on statements made on testimony in this courtroom.”

Prosecutors had attached an article from Life Site News to the motion, but also said tweets about court proceedings had spurred an unhinged assailant to attack Doe 12 in an unspecified “road-rage incident” on Sept. 5.

“There are fringe groups out there willing to believe whatever they read on the internet,” Jauron said.

Merritt’s attorney Horatio Mihet said there was no evidence of Doe 12 being harassed.

“All we have is hearsay,” Mihet said, adding the identities of the Doe witnesses in the criminal proceedings would soon be made public in an upcoming federal civil trial against Merritt and Daleiden before U.S. District Judge William Orrick III.

“Judge Orrick said there will be no Does in his courtroom. In three weeks, Does 12, 9, and 10 all will be testifying using their real names in a very public civil trial,” Mihet said.

He added the news article accompanying the motion was not published until Sept. 6, the day after Doe 12 testified, so it could not be connected to the alleged incident.

Hite denied the prosecution’s motion, saying the alleged harassment could not be connected to any statements made by the defense attorneys.

“The order of the magnitude you’re requesting is frowned upon as a burden on an individual’s First Amendment right,” he said. “To gag a defense attorney without more of a connection to them and their comments, I have concerns about that.”

Doe 12’s attorney Jeffrey Einsohn said Doe 12 had nothing to do with the civil case and that “our client has a right to be free from harassment, intimidation and abuse.”  He blamed Daleiden’s anti-abortion group, the Center for Medical Progress, for inflammatory tweets about the case.

“This happened when defendants’ counsel and their people were tweeting about her testimony all day,” he said.

But Hite said they had a constitutional right to tweet. “I can’t stop the public from tweeting about a court proceeding,” he told Einsohn. “You know that.”

The prosecution also sought a protective order against Daleiden and Merritt on Doe 12’s behalf.

Daleiden’s attorney Brentford Ferreira objected, saying a criminal stay-away order would be prejudicial and that Daleiden never contacted Doe 12 personally.  “It makes it appear that he has done something wrong and he has not,” he said, adding, “We can’t have the First Amendment trampled upon.”

Hite ended up denying the protective order but said anyone caught intimidating witnesses would face prosecution.

According to documents filed with the court, Doe 12 claimed to have been followed from the San Francisco Hall of Justice as she headed home toward Vacaville. A white female driver then began filming Doe 12 with her phone while trying to run her off the Carquinez Bridge. Doe 12 reported the incident to Special Agent Brian Cardwell with the California Department of Justice, who wrote a report Sept. 9.

Cardwell’s report says the woman “was screaming and waving her hands in a crazy manner,” before “she sped off and Doe 12 continued to travel home.”

Doe 12 also reported “threats and/or disparaging comments sent to Doe 12’s business via the telephone and StemExpress’ website, after her testimony on 9/5/2019.”

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