Undercover Journalists or Anti-Abortion Fraudsters? A Jury Will Decide

SAN FRANCISCO (CN) – On the first day of trial over abortion foe David Daleiden’s campaign to infiltrate industry meetings and covertly videotape Planned Parenthood doctors, a jury was bombarded with conflicting messages on what the case is about.

David Daleiden, an anti-abortion activist charged with invasion of privacy for filming attendees at National Abortion Federation conferences in California, faces civil claims brought by Planned Parenthood in a trial that began Oct. 3, 2019, in San Francisco.

A Planned Parenthood lawyer told the jury this case is about a plan to “use any means to destroy” the nation’s largest abortion provider. Daleiden’s lawyers said the case is about a “powerful corporation” going after undercover journalists for creating bad press for the non-profit health care provider.

Planned Parenthood seeks hundreds of thousands of dollars from Daleiden, his group Center for Medical Progress and his co-defendants – Sandra Merritt, Troy Newman, Albin Rhomberg and Gerardo Adrian Lopez – for increased security costs resulting from the group’s undercover operation.

Daleiden and his allies posed as a fake biomedical company to access abortion industry conferences in 2014 and 2015 and secretly record conversations with Planned Parenthood staff, sometimes using fake IDs. The videos were released in July 2015 as part of the center’s “Human Capital Project.”

Daleiden’s lawyer Charles LiMandri told jurors that his client is a “caring and compassionate person” who launched the multiyear campaign to expose what he believed was Planned Parenthood illegal profiting from the sale of fetal tissue. Planned Parenthood has never been charged with or found guilty of a crime related to its fetal tissue donation program.

Whether Planned Parenthood gained financially from donating fetal tissue is not an issue to be decided in this case, U.S. District Judge William Orrick III warned the jury of nine men and three women Thursday. But that didn’t stop defense lawyers from pushing that narrative forward.

“Changing abortion procedures and having fetuses born alive to harvest organs,” said attorney Horatio Mihet, describing what his client, Merritt, believed Planned Parenthood was doing when she decided to take part in the undercover operation.

Orrick interrupted Mihet and other defense lawyers multiple times to remind the jury that that those claims are “hotly disputed” and only to be considered as background for the defendants’ motives in this case.

What the jury must decide is whether Dalieden and his co-defendants are liable for fraud, breach of contract, unlawful recording of conversations, civil conspiracy and violation of the Racketeering Influenced and Corrupt Organizations (RICO) Act.

Orrick told jurors that California exempts recording confidential conversations without consent if it is done to obtain evidence of a violent felony. That is one line of defense Daleiden and his co-defendants are pressing forward.

The defendants also argue that because they did not cause the security flaws Planned Parenthood identified and later fixed after the videos were released, they should not have to pay for those security upgrades.

“They are being sued because Planned Parenthood is unhappy with negative reporting that the videos helped generate,” defense lawyer Harmeet Dhillon argued in court Thursday.

Planned Parenthood attorney Rhonda Trotter showed jurors copies of the confidentiality agreements defendants signed to gain access to meetings. The defendants say most of the contracts were with the industry group National Abortion Federation and Planned Parenthood cannot enforce them. Planned Parenthood counters it was a third-party beneficiary to the agreements.

Trotter also showed examples of the defendants’ fake IDs and company brochures stating that the firm, BioMax Procurement Services, provides tissues and specimens for medical research.

“That was a lie,” Trotter told the jury.

LiMandri said his client thought lying was justified because Daleiden believed it was a matter of “life and death.”

Trotter told jurors of the increased threats and harassments Planned Parenthood affiliates experienced after the videos were released. The videos were tied to a 2015 shooting at a Colorado Springs Planned Parenthood that killed three people and wounded nine others. Orrick previously decided to exclude that evidence from trial, finding it could prejudice the jury.

After opening statements, Planned Parenthood of California Central Coast president and CEO Jenna Tosh took the stand as the first witness, describing how she felt “sick, really just scared and violated” after the videos were first released in July 2015.

Defense attorney Paul Jonna asked Tosh if she was “concerned” about one of her affiliate’s doctors, Deborah Nucatola, caught on tape discussing crushing “above or below” parts of a fetus during abortions to keep certain organs intact for medical research.

Tosh replied that she was concerned that a narrative was being put forward that was “not in line with Planned Parenthood’s mission.”

Jonna then asked if a person who discusses engaging in criminal conduct at a private meeting should be allowed to keep that conversation secret.

Tosh said she disagreed with the premise of Jonna’s question – that Planned Parenthood staff engage in criminal conduct.

“I think Planned Parenthood has high standards for dealing with wrongdoing,” she said.

The trial is expected to continue through Nov. 8 or later.

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