SAN FRANCISCO (CN) – A San Francisco judge on Monday delayed a long-awaited preliminary hearing to decide if there is enough evidence to try two anti-abortion activists for recording Planned Parenthood staff allegedly arranging the sale of aborted fetal tissue, after state prosecutors and attorneys for the health care provider unexpectedly filed a series of motions on the eve of the proceedings.
Originally set to begin Feb. 19, the preliminary hearing is now set for April 22 to May 3 at San Francisco’s Hall of Justice.
“The defendants have established cause for the request, and I don’t want to put them in the position where they feel they cannot adequately defend their clients,” San Francisco County Superior Court Judge Christopher Hite said in court Monday.
Beginning in 2014, anti-abortion activists David Daleiden and Sandra Merritt posed as employees of a fake fetal-tissue procurement company called Biomax to gain access to abortion conferences around the country, where they filmed themselves attempting to buy aborted fetal tissue from 14 people associated with Planned Parenthood without the peoples’ knowledge.
According to Planned Parenthood, the footage was edited to suggest it unlawfully buys and sells fetal tissue and then posted online. The health care provider says the videos touched off a wave of violence at its clinics that culminated in the November 2015 murder of three people gunned down at its clinic in Colorado Springs.
Monday’s ruling is a victory for Daleiden and Merritt, who face 15 felony counts each for invasion of privacy over the recordings. The pair have sought to recast the case as a First Amendment issue, accusing prosecutors of conspiring with Planned Parenthood and abortion trade group National Abortion Federation to “suppress” their speech rights “under the guise of a criminal prosecution.”
“What this was, was an intentional sandbagging and ambushing by the attorney general – who has unlimited resources at his disposal – against two defendants whom he tried to bury in paperwork,” Merritt’s attorney, Horatio Mihet of Liberty Counsel, said outside court Monday.
In court papers, defense counsel accuse prosecutors of trying to weasel Planned Parenthood and National Abortion Federation into the case to help them conduct a “discriminatory prosecution.”
Planned Parenthood moved late last month to intervene in the case on behalf of four of the 14 people – identified in legal filings as “Jane Doe” – to request that the defense be barred from cross-examining them at the preliminary hearing about abortion and tissue donation. The Does and National Abortion Federation, which also moved to intervene, claim they are “victims” and thus have the right under California’s Marsy’s Law to intervene in a criminal proceeding.
Marsy’s Law, enacted in 2008, states that victims have the “‘right to be heard, upon request, at any proceeding,’ and that the court must take steps to protect their constitutional rights to ‘be free from intimidation, harassment, and abuse, throughout the criminal … justice process’ and to ‘reasonably be protected from the defendant and persons acting on behalf of the defendant,'” according to Planned Parenthood’s brief.
Planned Parenthood argues that abortion and tissue donation are irrelevant to the case, and that questioning the Does about them is part of a strategy “designed to publicly harass, shame, and terrorize abortion providers, raise the personal costs of providing abortion services to untenable levels, and drive individuals away from providing pregnancy-related services to women in need.”
Daleiden’s lawyers countered in court Monday that third parties and victims are prohibited from intervening in criminal cases. And they accused prosecutors of having a “conflict of interest” with Planned Parenthood and National Abortion Federation. To support this argument, they cited the fact that California Deputy Attorney General Johnette Jauron allowed Planned Parenthood to attach its declarations to a separate motion her office filed to seal the videos after they are played in court, and that she emailed Hite “seeking to include” federation attorney Derek Foran in the case.
“She could have opposed the letter brief” from Foran and the motion to intervene from Planned Parenthood attorney Matthew Umhofer, said Daleiden’s attorney, Brentford Ferreira, of Steve Cooley & Associates. “It’s her job as a prosecutor.”
“It’s my job to listen to victims,” Jauron shot back.
Hite is expected to issue a final ruling later this week, but he appeared to accept the defense’s arguments Monday.
“This is a little bit of a thin line,” he said, adding that Marsy’s law is geared toward victim-impact statements made at the end of a criminal proceeding. “There is one prosecuting agency for every criminal case; this goes beyond Marsy’s Law … it’s beyond being heard about how this affects me, how this affects my friends and family.”
Jauron on Monday also presented arguments for sealing certain videos shot by Daleiden and Merritt after they are played publicly at the preliminary hearing. She argued the defendants want unfettered access to the videos to carry out an ongoing “social media campaign to promote hysteria, and it is putting actual peoples’ lives in danger.”
Hite didn’t indicate how he will rule on sealing, but he said he wasn’t inclined to seal certain videos that are already available online. He is also expected to rule on the prosecution’s motion to allow the Does to testify anonymously. At a Jan. 28 hearing, he indicated he will probably grant that motion, citing concerns for the Does’ safety.
Outside court Monday, Mihet offered a different view of the sealing issue. “The only reason the attorney general wants to have these videos sealed and kept from the public eye is because the videos themselves provide damning evidence that these allegedly confidential conversations were not in fact confidential,” he said. “The videos themselves put the lie to the attorney general’s case and reveal it for the fraud that it is.”