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A legal puzzle about the indictment of David Daleiden [Updated]

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.)

Comments (15)

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?

Bwahahaha, great point. It really is comical, in a black humor/laugh so you don't cry sort of way.

If I understand this correctly, Daleiden has been charged with attempting to purchase human parts. Which, according to the law apparently, planned parenthood does not have to sell anyway (legally aborted babies are not human and thus their parts are not human). Perhaps that is how Daleiden could be charged for buying but PP not for selling. It would be akin to someone trying to buy an illegal drug from a pharmacy that really does only sell legal drugs.

A bit more seriously, I thought this charge was related to an alleged email from Daleiden where he offers to buy parts for $1500. PP is said to not have responded. So I've assumed Daleiden is being charged because there is a record of his offer to buy but no record (apart from the undercover video) of PP offering to sell. Which raises the question as to why anyone would think PP would even have record of this type of thing.

Certainly one _could_ offer to buy something that someone else was not selling. The question remains how undercover operations are treated in law. If you had no real intent to purchase but were attempting to bring out into the open the illegal sale activities by the entity you approached, then does that meet the "intent" provision of the law? For example, suppose that a reporter believes that a pharmacy is a front for a drug selling organization. He poses as a buyer and records his own approach to the pharmacy. And suppose the law says that it's illegal to buy drugs. Is he now breaking the law automatically, merely in virtue of his undercover operation? That seems highly counterintuitive, especially if he had evidence that a reasonable person would take to indicate that this pharmacy was, in fact, selling drugs illegally.

The fact that PP did not respond to that _particular_ e-mail must, of course, be put into the context of the larger interactions between Daleiden and PP, as well as in the context of the fact that he had no actual intent to purchase. They had played ball with him up until then and had made it clear that they were quite willing to accept special compensation for desired baby parts. He wrote an e-mail later specifying a price. If, as the prosecutor boasts, the Grand Jury looked at _all_ of the evidence, obviously the e-mail does not exist in isolation. The undercover video exists. There's no reason to treat it as non-evidence. Indeed, presumably it is being treated as evidence in the attempt to indict Daleiden!

Some laws criminalize just the attempt. Child pornography laws do that, if I remember correctly. Merely attempting to acquire it is itself covered under the same statute as successfully acquiring it. So we'll have to wait and see what legal experts say about the human body parts law. It's possible that merely attempting to buy is criminal, so even if you went to McDonalds and seriously tried to order a human kidney, you could be theoretically charged.

In that case, of course, undercover police themselves or the agents on "to catch a predator," are breaking the law and chargeable. Which seems not only morally wrong but legally wrong, since no one expects those people to be charged.

The point that will presumably made by Daleiden's lawyers is that it is not a bona fide attempt to purchase. One is pretending to attempt to purchase with the intent of documenting illegal and genuine willingness to sell.

I agree intent should matter. Otherwise someone who merely cracked a joke about wanting to buy human parts would be breaking a law. Even if it was obvious in context that it was a joke. I guess we will see if in Daleiden's case it does. That he got indicted at all on this particular charge indicates that the grand jury did not think intent matters.

As for the videos, I assume they are being treated as non-evidence of anything PP has done. If Daleiden is charged with creating fraudulent identification with the intent to decieve/defraud PP, could that mean that any evidence gathered by Daleiden against PP would be inadmissable because it was obtained fraudulently? If so, is this an either/or case? Either those videos are evidence of Daleiden's attempts to defraud PP or they are evidence of PPs interest in selling human parts.

As for the videos, I assume they are being treated as non-evidence of anything PP has done. If Daleiden is charged with creating fraudulent identification with the intent to decieve/defraud PP, could that mean that any evidence gathered by Daleiden against PP would be inadmissable because it was obtained fraudulently?

I doubt that very much. That certainly does not follow from the indictment of Daleiden, and in any event the indictment was supposedly made *after reviewing all available evidence*. It cannot mean that such-and-such was "not evidence," since the indictment itself is supposed to follow after the review of everything plausibly relevant to the case.

What shenanigans the prosecution might try to pull in a trial, if it goes to trial against him, is a different matter.

In that case, of course, undercover police themselves or the agents on "to catch a predator," are breaking the law and chargeable. Which seems not only morally wrong but legally wrong, since no one expects those people to be charged.

It varies by law, and on some of these things I think I've seen law enforcement exceptions in the law. As for "to catch a predator," the local DA IIRC actually asked them to leave because he said that none of the cases would be actionable as they were entrapment.

The attorneys for David Daleiden and Sandra Merritt have claimed it is a runaway grand jury which is improbable but not impossible. Houston is one of the more liberal cities in Texas but the prosecutor is a Republican who ran for office as a pro-life candidate.

So how is he buying if she is not selling?

From the Gospel Coalition link:

If Daleiden offered to buy fetal tissue from PPGC and that particular franchise rejected the offer, then he would chargeable while they would not.

From a different Gospel Coalition article linked to by the first:
In each of these laws, the term “valuable consideration” does not include “reasonable payments associated with the transportation, implantation, processing, preservation, quality control, or storage of human fetal tissue.”

The problem is that Daleiden reportedly submitted a contract that offered between 15-50 times the payments which were discussed in the sting videos. That franchise of Planned Parenthood rejected his proposal because they saw it was so far outside their normal rates.

I will admit I still don’t know how Planned Parenthood has dodged the charge of altering procedures to obtain specific organs but so far no state investigation has found evidence to support it. So either their representative were lying on the sting videos or they have managed to keep that info out of their records.

The problem is that Daleiden reportedly submitted a contract that offered between 15-50 times the payments which were discussed in the sting videos.

I could be wrong, but I don't think this is correct. I don't think that the representative in the video of PPGC discussed particular prices.

The information in this link seems relevant. Notice that this applies to the actual DA who led the case against Daleiden. It isn't just about someone else in her office, which has been reported in other stories.


This whole thing reeks of someone using the legal system to save face for Planned Parenthood. No matter what happens next, it's just too easy now to believe this indictment proves PP has been saintly along. Getting a jury to actually convict Daleiden and Merritt seems far fetched, so for them them this may be a case of the process being the punishment. Thankfully they would get a jury trial, if a judge got to decide this kind of case I am guessing they would be hosed.

At common law, a grand jury was an assemblage of local persons, who were brought together and asked to conclude, more or less on their own, "who are the criminals among us?"

Today, grand juries are rarely so self-directing. DAs present a potential case to them (that's the presentment), and the proceedings go much like a trial, except completely one-sided. Only the DA gets to call witnesses. There is no cross-examination, although sometimes the jurors can ask questions. Lawyers other than the DA aren't allowed to address the grand jury. The prosecutor has minimal responsibility to present exculpatory evidence. The proceedings, of course, are secret. No one has a right to be present during the jury's deliberations or the DA's presentation.

If a grand jury returns a true bill, that is what results in an indictment, the official charge. There is generally not much difference between the true bill and the indictment itself. In states that require grand jury indictments, a DA generally cannot charge a suspect without a true bill, but a DA is not required to pursue and prosecute an indictment returned by a grand jury. Also, note that jeopardy does not attach at the grand jury stage, so a DA who gets a no true bill on a presentment can just bring the same presentment before the next grand jury and try again.

So no, the grand jury did not just decide based on its own investigation that there was probable cause to think Daleidon may have violated certain statutes. The DA presented the law and the facts that would support such an indictment.

Maybe the DA presented facts and law regarding a PP indictment as well, and the jury declined to return a true bill. But I doubt that the DA asked them very hard. There's a saying among lawyers---and it's a saying for a reason---that the average grand jury would indict a ham sandwich if the DA asked.

Thank you, Titus, that's pretty much what I thought. It surprises me that more people aren't raising this issue, because the DA has really "spun" the actions of the Grand Jury here to make it sound like they acted on their own and indicted Daleiden and his companion (to her, the DA's, complete surprise) when they were originally asked to investigate Planned Parenthood. The news organizations, including some Christian sites, are simply restating this spin without questioning it.

I guess there aren't enough old Law & Order watchers in the Christian blogosphere.

But I can't say that the liberal blogosphere was much more alert in the Ferguson case, when a grand jury returned no bill in the death of Michael Brown. It seemed obvious to me that the prosecutor did not think there was a case and so proceeded with a grand jury for political reasons, making sure to get no indictment.

In this case, the prosecutor was ordered to investigate, made a show of it and got exactly what they wanted, as they usually do. I can even remember the ham sandwich line from a Law & Order episode.

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