Back in June, a judge dismissed the last of the charges against David Daleiden and Sandra Merritt, who were indicted in January 2016 by a Harris County Grand Jury on charges of tampering with government records for using fake identification and offering to buy fetal tissue at a meeting at which Planned Parenthood officials explained how they provided the tissue to apparent medical researchers.
They were a bit fortunate to get off on a bit of a technicality that time, as there was a legal issue with the grand jury’s term which had been extended during the investigation, and that allowed attorneys for Mr. Daleiden to argue that the grand jury didn’t have the authority to indict during the extension.
However, this week, the California Attorney General announced that he was filing 15 felony charges against the two – 14 in violation of California’s stringent eavesdropping law and one for a criminal conspiracy.
Attorney Tom Brejcha from the Thomas More Society, representing the two, was quick to argue, “When it comes to felony charges against our client, David Daleiden, history is on our side. When David Daleiden and Sandra Merritt were falsely charged in Texas, after they mounted a vigorous defense, the charges were abruptly dropped. We expect that the same will prove true in California.”
Mr. Brejcha stated, “The world knows that Planned Parenthood’s business partners, DaVinci Biosciences and DV Biologics, have been sued by Orange County, California. The lawsuit alleges that they illegally profited from the sale of human baby body parts from abortions. This confirms the truth of what has been depicted in Daleiden’s videos.
“David Daleiden and his co-defendant, Sandra Merritt, will be vindicated,” he continued. “They will assert robust defenses to these charges. Their efforts led to numerous criminal referrals by both Senate and House investigative committees. Their efforts were furtherance of First Amendment values and are clothed with the same Constitutional protection that all investigative journalists deserve and must enjoy. Undercover journalism has been a vital tool in our politics and self-governance.”
While Mr. Brejcha is playing a bit loose with the facts from Harris County, there is no such problem in California. These are very technical violations – akin to bringing down Al Capone for tax evasion – but they have real teeth.
As a journalist, one has to be very aware of California’s privacy law. Unlike many states, California requires two-party consent to record in any situation where one has a reasonable expectation of privacy. There are ways to avoid this – but they basically preclude the kind of surreptitious recording technique that Mr. Daleiden used.
The law goes back to 1967 when the California Legislature passed the “Invasion of Privacy Act” which uses criminal penalties to protect the right to privacy. Under Penal Code section 632, it is not just a crime to listen in on a private conversation when they may not know you can hear them, but it is a crime to use an electronic device to overhear or record a private conservation.
Ironically, while the law makes it a crime for citizens to eavesdrop, there is no such restriction for the police or law enforcement to do the same.
How far does this law extend? Well, California is one of the few states that requires parents to inform the nanny that they are using a nanny-cam to record their conduct.
As jury instructions explain, in order for eavesdropping to be a crime, it needs to have several specific characteristics.
First, it must be intentional. Accidental eavesdropping is apparently not illegal.
Second, it needs to take place without the permission of one of the parties. Both parties must consent to the recording. If one party consents but not the other, it is still criminal eavesdropping.
Third, the conversation needs to be confidential. While this might seem like a potential place where the defense can gain a foothold, under the law, this simply means that the conservation takes place “in circumstances that reasonably indicate that at least one party to the conversation intends for no one else to overhear it.”
Finally and most importantly, the eavesdropping needs to involve the use of a recording device either to overhear or record the conversation.
PC section 632(a) is considered a wobbler and therefore can be charged as either a felony or a misdemeanor. Charged as a felony, as it is, the penalty is punishable from between 16 months to three years in state prison. With 15 felony charges, they are facing substantial exposure.
“The right to privacy is a cornerstone of California’s Constitution, and a right that is foundational in a free democratic society,” said Attorney General Xavier Becerra. “We will not tolerate the criminal recording of confidential conversations.”
We suspect that, unlike the case in Harris County, the defendants will not skate on a technicality. That means, at some point, the defendants will have to cut some sort of deal or risk facing the maximum penalty and decades in prison.
Is that overkill? No doubt. Decades in prison for this sort of crime and 15 stacked charges is a clear overcharging by the AG’s office.
Some have suggested that the information discovered needed to come to the surface. That is a subjective assessment. However, as a journalist – which Mr. Daleiden is purporting to serve the function of in order to expose wrongdoing – you have to follow the law. Citizens have a right to privacy under the law and Mr. Daleiden appears to have blatantly violated that.
Could he have used other mechanisms to expose wrongdoing? That’s a question for another day.
For those who believe that Mr. Daleiden acted appropriately – would you condone the police busting down the door without a warrant or wiretapping without a court order? In this case you have a private citizen taking the law into their own hands and violating the rights of those involved – whether you believe the conduct warranted investigation or not, this wasn’t the proper way to do it.
Now the question is what the ultimate penalty will be here.
—David M. Greenwald reporting