Pro-lifers have been shocked by the fact that a Texas Grand Jury has refused to indict a particular Planned Parenthood for baby parts trafficking and instead has indicted David Daleiden and one of his helpers who engaged in undercover investigation of Planned Parenthood. The indictments appear to stem from the fact that Daleiden pretended to offer to purchase baby parts, which is allegedly a crime in Texas, and that he and his helper had to create fake IDs of some kind in the course of their investigation.
Numerous reports give the strong impression that the Grand Jury was asked to investigate Planned Parenthood but, moved by a surprisingly detailed knowledge of the law and purity of motive, felt bound to indict Daleiden instead when they just happened to notice that he broke Texas law by offering to buy fetal tissue and faking a driver's license.
This seems implausible.
Here is a quotation from the Harris County, Texas, web site on the proceedings of a Grand Jury:
The essential function of the grand jury is to determine whether or not a person or persons should be formally accountable for the commission of a crime—a felony or a misdemeanor. The grand jury performs this function by determining if there is probable cause to believe a crime has been committed and probable cause to believe that a particular person or persons committed the crime. The grand jury performs its duty by then returning a true bill or no bill. If a true bill is returned the case goes to court and if a no bill is returned then, absent new additional facts, the case is over.
I don't know how others read that, but to me it sounds like someone else (presumably, someone from the prosecutor's office) presents the Grand Jury with the idea that a particular person might have committed a crime, and tells them what crime it would have been, and the Grand Jury then decides if that person did so or not and returns a "true bill" or "no bill" based on its findings.
This is consonant with this:
The grand jury plays an important role in the criminal process, but not one that involves a finding of guilt or punishment of a party. Instead, a prosecutor will work with a grand jury to decide whether to bring criminal charges or an indictment against a potential defendant -- usually reserved for serious felonies.
Other sources refer to a "presentment" of a Grand Jury, which does occur when a Grand Jury acts on its own, sua sponte, and concludes that there is probable cause to believe that a person has committed a crime. See here and here. But that sounds like a situation where the Grand Jury (somehow) acts on its own altogether--that is, not as though they are impaneled to investigate one putative crime and then do an about face and bring charges for another on their own. E.g.
A few states follow the old, common law practice and let grand juries initiate their own investigations based on what the grand jurors know about what is going on in their community.
And the charge against Daleiden is being called an indictment, not a presentment. Despite the way that this indictment is being presented in the news, I have serious doubts that the Harris County Grand Jury
a) knew on its own that you could be charged with a crime for offering to buy human organs even if you had no intention of doing so and even if you were engaging in an undercover investigation
b) decided on its own, with no prompting from the prosecutor, that this law should be enforced against Daleiden, even though it seems highly problematic in terms of its effects on investigative journalism and even police sting operations
c) decided on its own, with no prompting from the prosecutor, that charges should be brought for producing a fake driver's license.
Grand Jury proceedings are secret, so we may never know exactly how it went down, though we should be able to find out what the Harris County Grand Jury even could do--that is, whether they could bring charges sua sponte, "in the course of an investigation," without any suggestion whatsoever from a prosecutor. Here is the statement of the Harris County district attorney:
She declined to provide details about the case against Mr. Daleiden and Ms. Merritt, including any documents or evidence presented to the grand jury, citing state law on the secrecy of grand jury proceedings.
“As I stated at the outset of this investigation, we must go where the evidence leads us,” Ms. Anderson said. “All the evidence uncovered in the course of this investigation was presented to the grand jury. I respect their decision on this difficult case.”
Right. All the evidence uncovered and your "suggestions" as to what crimes you, as a legal expert, think were committed by CMP, or just an undifferentiated pile of evidence, whereupon the jurors jumped up spontaneously and indicted Daleiden?
The point is important because of concerns about possible conflict of interest in the Harris County DA's office.
Moreover, given what the video shows concerning the "director of research" for that particular Planned Parenthood (Planned Parenthood Gulf Coast), the "clearing" of PPGC of part-selling charges is extremely dubious and raises serious doubts about how the Grand Jury was instructed.
“Where we probably have an edge over other organizations, our organization has been doing research for many many years,” explains [Melissa] Farrell. When researchers need a specific part from the aborted fetus, Farrell says, “We bake that into our contract, and our protocol, that we follow this, so we deviate from our standard in order to do that.”
Asked specifically if this means Planned Parenthood Gulf Coast can change abortion procedures to supply intact fetal specimens, Farrell affirms, “Some of our doctors in the past have projects and they’re collecting the specimens, so they do it in a way that they get the best specimens, so I know it can happen.”
The investigators ask Farrell how she will frame a contract in which they pay a higher price for higher quality fetal body parts, and she replies, “We can work it out in the context of–obviously, the procedure itself is more complicated,” suggesting that “without having you cover the procedural cost” and paying for the abortion, the higher specimen price could be framed as “additional time, cost, administrative burden.”
Farrell finally summarizes her affiliate’s approach to fetal tissue payments: “If we alter our process, and we are able to obtain intact fetal cadavers, we can make it part of the budget that any dissections are this, and splitting the specimens into different shipments is this. It’s all just a matter of line items.”
If what Farrell is doing does not count legally as selling body parts, then one has to wonder why what Daleiden is doing counts as buying body parts. After all, the procurer played by Daleiden is happy with the proposal made by Farrell. It seems to meet what he is looking for. So how is he buying if she is not selling?
This indictment seems extremely shaky, and if the county DA's office pursues prosecution against Daleiden (it has already stated that it intends to pursue no charges against PPGC or Farrell), one will have to wonder about prosecutorial motives and objectivity.
David Daleiden knew that he could end up losing everything for this investigation, but he carried it out anyway. God bless him for his courage.
Update: Daleiden's defense, the Thomas More Society, explicitly claims that the relevant statutes require intent (I believe this is known as mens rea) and that therefore the fact that Daleiden did not actually intend to purchase the organs is a relevant defense. Here are some quotations from his lawyers.
We have very strong defenses, and neither of these two laws fit what David Daleiden and his undercover team did,” said Peter Breen, a lawyer with the Thomas More Society who also represents Daleiden in civil litigation. “That procurement statute requires intent, and everyone in the country knows David Daleiden had no intention to buy baby body parts, while Planned Parenthood had the repeated intention to sell baby body parts and adjusted their procedures to harvest better body parts.
Planned Parenthood in Houston was caught on tape agreeing to change abortion procedures, presumably without telling their patients, to get better organs from their aborted babies. David Daleiden documented this and other criminal activity using standard legal undercover journalism techniques. These charges are seriously flawed and should be closely scrutinized by the Texas courts.
I believe this should call into question the statement in the Gospel Coalition's FAQ article, which says,
Under this Texas statute, Daleiden would have violated this section even if he had no intention of carrying out the actual purchase of the fetal remains.
This conclusion appears to be based upon a narrow reading of the text of the statute about organ purchasing.
I appreciate the Gospel Coalition's desire to document things as objectively as possible, but legal matters are often more convoluted than they appear, and such an "intent" interpretation of the law would avoid the bizarreness of the application of a law to undercover procedures in which one is merely pretending to attempt to purchase some contraband item or substance. I urge readers not to accept as authoritative the claim that Daleiden has broken Texas law merely by making such a pretense.
This article alleges,
Texas state law only allows someone to be charged with such a serious felony “if the actor's intent in committing the offense was to defraud or harm another.”
This appears to refer to the charge for making a fake driver's license. In that case, a question will arise as to whether Daleiden intended to "defraud or harm another" in making the license. Does the intent to call attention to what he believed was Planned Parenthood's own illegal activity count as an intent to harm or defraud in the meaning of the law? (It certainly shouldn't, especially if a reasonable man would consider that PP actually was engaging in illegal activity that needed to be exposed.)