There is a surprising development out of Texas in the investigation of into Planned Parenthood and the scandal over the selling of fetal tissue and body parts. The Center for Medical Progress had gone undercover to record officials with the organization speaking about the sales in ways that outraged the public and triggered a backlash against Planned Parenthood. However, the grand jury opted not to indict anyone at Planned Parenthood and instead charged David Daleiden and Sandra Merritt with the Center of Medical Progress for tampering with a governmental record, a second-degree felony. Perhaps the most interesting charge was the indictment of Daleiden with the purchase and sale of human organs, a class A misdemeanor. The group has insisted that it was using standard journalistic practices in showing that Planned Parenthood was illegally profiting from the sale of fetal tissue. Planned Parenthood has been cleared of any wrongdoing in various states. However, Planned Parenthood was forced to apologize for the casual tone of its officials and changed its policy on reimbursements for tissue and body parts.

In some ways, the indictment is a backfire for Texas Lt. Gov. Dan Patrick and others who called for a criminal investigation into the organization. The Grand Jury apparently found criminal conduct on the part of the anti-abortion activists instead.

In making the videos, the Center set up a fake company called Biomax Procurement Services and created fake identities to pose as legitimate providers of fetal tissue to researchers. That is certainly similar to journalistic investigations. However, Dealeiden and Merritt also created fake IDs that resembled California-issued licenses. Daleiden used the name Robert Sarkis on his license while Merritt used the name Susan Sarah Tennenbaum. The misdemeanor against Daleiden appears connected to laws prohibiting offers to buy fetal tissue. Daleiden had a meeting in April with Planned Parenthood officials in Houston and sent them an email to them in June offering to buy fetal tissue for $1,600 per sample.

That last point raises an interesting issue. Planned Parenthood never responded to the offer and Daleiden could claim that he never intended to buy the tissue — he was trying to confirm wrongdoing. Indeed, the organization is dedicated to opposing such sales – a conflict with the obvious purpose of the law. The misdemeanor count is troubling and will likely raise the status of the Center. It is always possible that the purpose or motivation of the defendants will be factored into the punishment or sentencing phase. Thus, even if the public interest purpose is not a defense, it can be a mitigating factor cited by the defense to reduce any sentence.

Daleiden, 26, released a statement that said that he used the “same undercover techniques that investigative journalists have used for decades in exercising our First Amendment rights to freedom of speech and of the press, and follows all applicable laws.” The Center itself could be viewed as more of an advocacy group than a journalistic enterprise. Yet on its site, it refers to itself as a collection of “citizen journalists”:

The Center for Medical Progress is a group of citizen journalists dedicated to monitoring and reporting on medical ethics and advances. We are concerned about contemporary bioethical issues that impact human dignity, and we oppose any interventions, procedures, and experiments that exploit the unequal legal status of any class of human beings. We envision a world in which medical practice and biotechnology ally with and serve the goods of human nature and do not destroy, disfigure, or work against them.

The difficulty for Daleiden and the Center that, as we have previously discussed, the media has faced liability over the years for such techniques. Courts have held that journalistic privilege does not insulate media from such torts and crimes as trespass, though it can have an impact on the level of damages allowed.

In Food Lion v. ABC , a store was shown in an undercover segment engaging in unsanitary techniques and accused Food Lion of selling rat-gnawed cheese, meat that was past its expiration date and old fish and ham that had been washed in bleach to kill the smell. Food lion denied the allegations and sued ABC for trespass. A jury ruled against ABC and awarded Food Lion punitive damages for the investigation involving ABC journalists lying on their application forms and assumed positions under false pretenses. (here). The Fourth Circuit however wiped out the punitive damage award while upholding the verdicts of trespass and breach of loyalty with awards of only $1 for each.

There is also a case out of the Seventh Circuit. Judge Richard Posner wrote the decision in Desnick v. ABC where investigative reporters went undercover in 1993 to show that employees of the Desnick eye clinic had tampered with the clinic’s auto-refractor, the machine used to detect cataracts so that the machine produced false diagnoses to find cataracts (and require procedures). The court rejected wiretapping claims (based on the state’s one-party consent rules) as well as trespass and defamation claims. On trespass, the court noted that the reporters were allowed into areas open to new patients. Posner relied on the consent to the entry to negate the trespass claim even when the entrant “has intentions that if known to the owner of the property would cause him . . . to revoke his consent.”

These cases will be equally relevant to the recent lawsuit filed by Planned Parenthood against the Center for Medical Progress, alleging the defendants engaged in fraud and misrepresentation to set up meetings and record conversations. It filed a host of counts from wire and mail fraud to invasion of privacy to illegal secret recording and trespassing.

The false IDs represent a serious problem because such issues are often presented by prosecutors and treated by juries as a straightforward violation of Tampering with a Governmental Record (which is a second-degree felony). It is a crime under the provision (below) if a person “makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record.” The provision further states:

a felony of the second degree, notwithstanding Subdivisions (1) and (2), if the actor’s intent in committing the offense was to defraud or harm another.
(e) It is an affirmative defense to prosecution for possession under Subsection (a)(6) that the possession occurred in the actual discharge of official duties as a public servant.
(f) It is a defense to prosecution under Subsection (a)(1), (a)(2), or (a)(5) that the false entry or false information could have no effect on the government’s purpose for requiring the governmental record.
(g) A person is presumed to intend to defraud or harm another if the person acts with respect to two or more of the same type of governmental records or blank governmental record forms and if each governmental record or blank governmental record form is a license, certificate, permit, seal, title, or similar document issued by government.

They could argue for exception (f): “It is a defense to prosecution…..that the false entry or false information could have no effect on the government’s purpose for requiring the governmental record.” However, driver’s licenses are used as official identification for citizens so the prosecutors can claim that this exception is not applicable. In creating the false cards, the prosecution could argue that the two defendants were using the state government to vouch for their authenticity and identification.

It is possible for the Center to argue that the IDs were not meant to resemble official documents. However, as shown below, they appear pretty official:

I remain troubled by the misdemeanor count against Daleiden and the lack of any allowance for an journalistic or public interest defense. As shown below, there is only an exception for doctors and others using such parts for medical research or treatment:

Sec. 48.02. PROHIBITION OF THE PURCHASE AND SALE OF HUMAN ORGANS. (a) “Human organ” means the human kidney, liver, heart, lung, pancreas, eye, bone, skin, fetal tissue, or any other human organ or tissue, but does not include hair or blood, blood components (including plasma), blood derivatives, or blood reagents.
(b) A person commits an offense if he or she knowingly or intentionally offers to buy, offers to sell, acquires, receives, sells, or otherwise transfers any human organ for valuable consideration.
(c) It is an exception to the application of this section that the valuable consideration is: (1) a fee paid to a physician or to other medical personnel for services rendered in the usual course of medical practice or a fee paid for hospital or other clinical services; (2) reimbursement of legal or medical expenses incurred for the benefit of the ultimate receiver of the organ; or (3) reimbursement of expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ.
(d) A violation of this section is a Class A misdemeanor.

I assume that the relevant tampering provision is below:

Sec. 37.10. TAMPERING WITH GOVERNMENTAL RECORD. (a) A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of, a governmental record;
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;
(3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;
(4) possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully;
(5) makes, presents, or uses a governmental record with knowledge of its falsity; or
(6) possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.
(b) It is an exception to the application of Subsection (a)(3) that the governmental record is destroyed pursuant to legal authorization or transferred under Section 441.204, Government Code. With regard to the destruction of a local government record, legal authorization includes compliance with the provisions of Subtitle C, Title 6, Local Government Code.
(c)(1) Except as provided by Subdivisions (2), (3), and (4) and by Subsection (d), an offense under this section is a Class A misdemeanor unless the actor’s intent is to defraud or harm another, in which event the offense is a state jail felony.
(2) An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the governmental record was:
(A) a public school record, report, or assessment instrument required under Chapter 39, Education Code, data reported for a school district or open-enrollment charter school to the Texas Education Agency through the Public Education Information Management System (PEIMS) described by Section 42.006, Education Code, under a law or rule requiring that reporting, or a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States, unless the actor’s intent is to defraud or harm another, in which event the offense is a felony of the second degree;
(B) a written report of a medical, chemical, toxicological, ballistic, or other expert examination or test performed on physical evidence for the purpose of determining the connection or relevance of the evidence to a criminal action;
(C) a written report of the certification, inspection, or maintenance record of an instrument, apparatus, implement, machine, or other similar device used in the course of an examination or test performed on physical evidence for the purpose of determining the connection or relevance of the evidence to a criminal action; or
(D) a search warrant issued by a magistrate.
(3) An offense under this section is a Class C misdemeanor if it is shown on the trial of the offense that the governmental record is a governmental record that is required for enrollment of a student in a school district and was used by the actor to establish the residency of the student.
(4) An offense under this section is a Class B misdemeanor if it is shown on the trial of the offense that the governmental record is a written appraisal filed with an appraisal review board under Section 41.43(a-1), Tax Code, that was performed by a person who had a contingency interest in the outcome of the appraisal review board hearing.
(d) An offense under this section, if it is shown on the trial of the offense that the governmental record is described by Section 37.01(2)(D), is:
(1) a Class B misdemeanor if the offense is committed under Subsection (a)(2) or Subsection (a)(5) and the defendant is convicted of presenting or using the record;
(2) a felony of the third degree if the offense is committed under:
(A) Subsection (a)(1), (3), (4), or (6); or
(B) Subsection (a)(2) or (5) and the defendant is convicted of making the record; and
(3) a felony of the second degree, notwithstanding Subdivisions (1) and (2), if the actor’s intent in committing the offense was to defraud or harm another.
(e) It is an affirmative defense to prosecution for possession under Subsection (a)(6) that the possession occurred in the actual discharge of official duties as a public servant.
(f) It is a defense to prosecution under Subsection (a)(1), (a)(2), or (a)(5) that the false entry or false information could have no effect on the government’s purpose for requiring the governmental record.
(g) A person is presumed to intend to defraud or harm another if the person acts with respect to two or more of the same type of governmental records or blank governmental record forms and if each governmental record or blank governmental record form is a license, certificate, permit, seal, title, or similar document issued by government.
(h) If conduct that constitutes an offense under this section also constitutes an offense under Section 32.48 or 37.13, the actor may be prosecuted under any of those sections.
(i) With the consent of the appropriate local county or district attorney, the attorney general has concurrent jurisdiction with that consenting local prosecutor to prosecute an offense under this section that involves the state Medicaid program.
(j) It is not a defense to prosecution under Subsection (a)(2) that the record, document, or thing made, presented, or used displays or contains the statement “NOT A GOVERNMENT DOCUMENT” or another substantially similar statement intended to alert a person to the falsity of the record, document, or thing, unless the record, document, or thing displays the statement diagonally printed clearly and indelibly on both the front and back of the record, document, or thing in solid red capital letters at least one-fourth inch in height.

Source: CNN