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
So selling-buying a human body part is a Mr. Meaner. Whilst taking a Mr or Mrs or Misses’ name is a felony.
Karen
I think that it’s not up to me or others, men especially, to determine what conversations take place between a woman and her doctor. The whole idea of carving out women’s health and reproductive issues from the rest of all medical procedures is invasive, misogynistic and wholly inappropriate. There are no conversations like this happening regarding men’s health issues, reproductive or otherwise. None. Let them work it out.
I would also say that under normal circumstances, viability of the fetus would be a limit. Having said that, I also believe that all of the legal manipulations being done to make it impossible or nearly impossible for women to get abortions need to be remedied in order for this to work. The elimination of clinics, mandatory waiting periods, restrictive building codes and the dozens of other tricks pro-birthers are using to remove access to abortions makes me want to remove any viability restrictions whatsoever and tell the pro-birthers to screw off wholesale. But that’s just my anger at them showing through.
As I’ve said three or four times now, with better sex ed, better access to birth control, less shaming and blaming, more access to clinics and early procedures, we could reduce the need for abortions in the first place, and get them done early.
All just my opinion. Ultimately I think it is an issue for women to decide. When men can get pregnant they should have more of a voice in the matter.
PhillyT:
“But reading what you posted is not even in the vicinity of a medical degree or even an afternoon seminar at a med school.”
How so? None of it was my own words, although I have stayed at a Holiday Inn before. It was a quote from a previous abortion provider, an OB/GYN who performed thousands of abortions. This was his testimony before Congress. As is noted at the top of the quote.
Unfortunately, abortion is one of those topics many people don’t want to talk about. Even discussing limiting abortion leads to “war on women” rhetoric, when if you think about it, the overwhelming majority of people agree that there should be a limit on abortion. Most people do not want full term abortion legal, for example. Even though it’s still the woman’s body, her right to choose, etc. And yet, the public will not allow her to kill her healthy fetus seconds before it draws breath upon full term delivery. It’s deciding where that line should be drawn that is difficult.
On this very blog, you can see that when I make rather mild comments that this is a difficult decision voters will have to make – the gestational limit on abortion, and that I believe that women should make informed decision – my position is mocked. I wonder why. Do you oppose any gestational limit on abortion? Do you oppose women being informed on gestation and the procedure?
I don’t beat anyone up on either side of the issue.
Here is an analysis from a conservative Republican who was at one time a part of the DA’s office down there and still has close ties: http://mimesislaw.com/fault-lines/planned-parenthood-law-over-party-politics/6299
Karen, It should be enough to know that an anti-choice DA who was appointed by RICK PERRY, convened a grand jury to look into indicting Planned Parenthood. The GOPers are NOT in the habit of putting liberals on their grand juries. The grand jury presumably heard ALL of the evidence presented by a witch hunting DA, and came to the conclusion as ALL other such grand juries which have looked into this have done and NO billed PP. Then to make it even MORE emphatic, they DID indict the makers of the propaganda film for CRIMES. Now that should be enough to satisfy most reasonable people, but not party hacks and fanatics. I am sure that if they try hard enough, they WILL find a grand jury somewhere which WILL give them an indictment. There are certainly enough folks in the GOP in Mississippi who will accommodate them or Georgia where murdering black folks who talk back is OK for their grand juries.
Thanks for your post Karen. The idea that the voting public is informed or educated enough to be able to vote on this is absurd on its face. There is a reason doctors hate it when patients come in with fifty pages of “medical information” they printed off the Internet. I think people should be as informed as possible about their own health, their own choices. But reading what you posted is not even in the vicinity of a medical degree or even an afternoon seminar at a med school.
Women who choose to have abortions should know what they are getting into, and every women I have ever talked to about it, knew exactly what was going on, and made the difficult, personal decision she had to make, one way or the other.
Better sex ed, better access to birth control. more choices, more information, less shame, less pressure. We could make the whole process a lot better.
<i.randyjet
Karen, You missed the fact that the tapes were edited to present a false picture. So the case of Sherrod is illustrative since the Brietbart tape was edited to present a FALSE picture of what she said and did. It promoted an outright LIE which initially cost her her job. The Sec of Agriculture was disturbed by what he saw, and fired her before asking for HER side of the story.
Mythmaking, it’s like people believe if they repeat “lie” enough times the facts change.
Sherrod’s side of the story is that while executing her government responsibilities she discriminated against an eligible citizen because of his race. The claim she later changed her practice is not relevant. This just shows how deep the culture war inhibits people’s ability to reason. They would never accept such flimsy nonsense as acceptable much less argue there is no other possible conclusion if politics weren’t controlling them.
Rick – the Sherrod tape was never edited to make Sherrod say something she never said, only it did not continue the full story. She DID refuse the farmer the loan and she DID do it because he was white. She admits that on the tape. And members of the NAACP clap and cheer when they hear her say that.
Here the text from an explanation of a 2nd trimester abortion at 24 weeks by an OB/GYN. Of course, there are opinions on both ends of the extreme and everywhere in between. I only want people to actually understand what a 2nd trimester abortion means. When we, as voters, are called upon to decide what the gestational limit for abortion is, we need to make an educated decision.
jim22
TLC and other outlets are very selective about what surgeries they film and show, and if you have actually watched them you would know that. They don’t ever broadcast anything too personal, or related to sex/genital surgeries in any way, and I doubt they ever will. There’s a big difference between watching open heart surgery and watching them do a vasectomy, tubal ligation or certainly breast augmentation surgery or an abortion. But I’m guessing you already knew that and were just trying to bend things your way.
And you are right, they are not really journalists. There is a whole new genre of citizen journalists, with the rise of social media, video drones, camera phones, and other tech that makes everyone a reporter.
They were also not journalists who infiltrated various slaughterhouses and revealed serious violations and animal cruelty, as well as the illegal processing of downer cows.
Some civil disobedience comes with a price, and this may be one of those cases.
randyjet:
“The fact is that the so called journalists were nothing of the kind since they edited the tapes to give an outrageous lie. The grand jury presumably got to see ALL of the tapes, and their judgement was such that they found the perps to be liars, in addition to breaking numerous laws.”
That is exactly my question. No one has told me what was edited out that exonerated what we saw. I understand that all of the unedited tapes are available on the CMP website, but as I’ve droned on before, I can’t watch videos online because I have satellite.
I understand they came back with a No Bill, but why? Was the evidence thrown out because it was entrapment? Did they say, “Just kidding!” or “April Fools!” off camera? How did they legally justify negotiating the highest rate for what was supposed to be reimbursement at cost? I still have a lot of questions, and all I know so far is it’s a No Bill.
It’s not my understanding that they are being charged for making it all up. The charges are false ID and offering to buy fetal tissues. Technically, yes, they are both illegal, although college students everywhere get away with the former and they had no intent to follow through with the latter.
So, can someone explain what was edited out that made everything on the video clips perfectly fine?
As I’ve said before, it may be that they said morally reprehensible things but did not actually break the law. I would like to find out.
Thanks!
Jim:
My eyes are apparently too bad for LASIK. Although it has FDA approval for my prescription, the results are not as good. Implantable contact lenses were recommended. I would love to be able to actually see when I wake up. Without my contacts in, I would walk into a wall. But… it’s surgery on my eyes while I’m awake. Can I sit still?
Sherrod did NOT sue the Dept of Agriculture as part of the libel suit. She and hundreds of other black GA farmers DID sue the DofA for millions which was ILLEGALLY withheld from them under the law back in the preCivil Rights era. The NAACP only apologized for denouncing Sherrod without knowing the FULL story. Brietbart CLAIMED he did not have the full tape. Given his history of lies, defamation, and other assorted journalistic malpractice, his assertion can be taken for another outright lie. If you can believe him, I have a bridge to sell you,cheap too. He also never apologized as most other decent human beings would do. He is gone and not missed and improved the race by one. At least he made his victim wealthy I hope. That is one decent thing that came from his life, but it was NOT of his own intent or volition. So he can claim no credit for it.
randyjet – who was it that fired Sherrod? And what was it that Obama said about Sherrod?
“Asking for a friend.”
The FACT is that Brietbart did the editing and her suit was settled without trial. So if the TV station did the editing as some fools suggest,they were NOT part of the lawsuit. That should be sufficient PROOF that such an allegation is absurd. I hope that the settlement makes her a multimillionaire from Brietbarts estate and his vicious web site. It is also time to re-open the case of the murder of her father back when there was an all white grand jury and killing black Americans was legal for whites in the South. Now that is the proper use of a grand jury!
randyjet – they all settled for an undisclosed amount. That included the Dept of Agriculture.
Are psych tests performed prior to issuing pilot licenses? Asking for a friend.
Karen, You missed the fact that the tapes were edited to present a false picture. So the case of Sherrod is illustrative since the Brietbart tape was edited to present a FALSE picture of what she said and did. It promoted an outright LIE which initially cost her her job. The Sec of Agriculture was disturbed by what he saw, and fired her before asking for HER side of the story. So yes the tapes would appear to be disturbing, just as any person could make a tape of you speaking in favor of mass murder and mayhem by skillful editing. Then you have the problem that NO state or legal body has found any reason to prosecute Planned Parenthood, but despite all this you STILL insist that they be tried and found GUILTY or should be. So evidence and law be damned, Planned Parenthood is something YOU hate, and they are guilty no matter what. The ONLY thing that is political is the FACT that all this grand jury investigation is political and the party HACKS on the right are outraged that their attempt to railroad people to prison has failed so far. But I am sure when the GOP takes full control, this will no longer be a problem.
randyjet – the TV people edited the Brietbart tape, not Breitbart. He always had the entire tape on his site. In fact, the horrifying thing about the Brietbart edition was the members of the NAACP who clapped and cheered when she said she did not give the white farmer a loan. The NAACP apologized for their behavior.
L’Observer
“Boy. Some crazy ‘politics’ down there in Texas!”
1. Was Gov. Perry tried for “abuse” or corruption for exercising his official authority; for doing his job?
2. If the police agencies in Texas conduct “sting” operations, are they similarly guilty?
– Future governors of the Great State of Texas will be compelled to clear all their activities and operations
with the Harris County District Attorney (sounds like criminal usurpation).
– “Sting” operations by the police in Texas will constitute a class A felony.
Caplan didn’t address ethical questions as much as procedural.
The fact is that the so called journalists were nothing of the kind since they edited the tapes to give an outrageous lie. The grand jury presumably got to see ALL of the tapes, and their judgement was such that they found the perps to be liars, in addition to breaking numerous laws. They were originally called to investigate Planned Parenthood, but wound up indicting the producers of the false film. That says it all. Too bad Turley forgot the suit PP filed against them for libel which indicates that they are anything BUT journalists. Then he and others forget about the laws the GOP has passed against any person who films scenes in industrial farms which show animal cruelty. Then for those who think editing is OK, I suggest you remember what Brietbart did to the woman who was accused of hating whites and denying them governmental aid. The edit omitted the FACT she used that as the absolute OPPOSITE of her point. I also heard NOTHING at all about the crime of murdering her father back in the bad old days of segregation when the white neighbor murdered her father for talking back to the white man. There was no call to reopen that case and prosecute the murderer. Let’s have justice for ALL, not just us white folks and conservatives.
randyjet – Breitbart did NOT make the video cut, the TV station did.