Experts: Activists' indictment shows disapproval of videos

HOUSTON -- A grand jury's decision to indict two anti-abortion activists who made undercover videos about Planned Parenthood might be less about sending someone to jail than about expressing disapproval for how the pair conducted their investigation, legal experts said Tuesday.

David Daleiden and Sandra Merritt are accused of using fake driver's licenses to infiltrate the nation's largest abortion provider to make videos that accused Planned Parenthood of illegally selling fetal tissue to researchers for profit. The footage provoked outrage among Republican leaders and prompted investigations by Republican-led committees in Congress and state governments.

Both activists are charged with tampering with a governmental record, a felony punishable by up to 20 years in prison. Daleiden also was indicted on a misdemeanor count related to purchasing human organs.

Legal experts said the two are not likely to see prison time if convicted because the accusation in this case -- making a false ID card -- typically does not result in incarceration, although tampering with a government record is a felony.

"It's really citizens scolding what they thought was a political investigation. Look at what they indicted them on," said Ekow N. Yankah, a law professor at the Cardozo School of Law in New York.

"If we're being frank," he said, "that is not a grand jury that is looking to bring the hammer down because you've done some grave, grave thing."

Daleiden's attorney, Murphy Klasing, said the activists, who live in California, plan to come to Houston's Harris County Jail, where they will be processed and allowed to post bond. Klasing said he did not know when that would happen.

Daleiden plans to plead not guilty to the charges, Klasing said.

Video footage showed the two posing as representatives of a company called BioMax, which purportedly procured fetal tissue for research.

Planned Parenthood has said the fake company offered to pay the "astronomical amount" of $1,600 for organs from a fetus. The Houston Planned Parenthood said it never agreed to the offer and ceased contact with BioMax because it was "disturbed" by the overtures.

The grand jury's investigation was initially begun by Harris County District Attorney Devon Anderson's office to look into Planned Parenthood. Jurors concluded the organization committed no wrongdoing.

Although it is unusual for a grand jury to indict someone who was not the target of its investigation, grand juries "are supposed to be independent and follow the evidence," said Philip Hilder, a Houston criminal defense attorney and a former federal prosecutor.

"I think that it's up to the grand jury to judge and evaluate the credibility of those making the accusations, and it is apparent here that the grand jury felt ... that a crime had been committed by the accusers," Hilder said.

Houston criminal defense attorney Grant Scheiner said he believes the evidence, not politics, ultimately guided grand jurors in their decision.

"The grand jury process is unpredictable," he said. "In this case, it looks like the grand jurors took an honest assessment of the evidence and they came up with best charges available. As it turned out, the charges weren't against Planned Parenthood."

Daleiden issued a statement saying his group "uses the same undercover techniques" as investigative journalists and follows all applicable laws.

Most professional news organizations discourage or explicitly forbid reporters from posing as someone else or otherwise misrepresenting themselves.

The Texas video was the fifth released by the Irvine, California-based Center for Medical Progress, which Daleiden founded.

Despite the center's lofty name, public filings suggest only a small number of people are affiliated with the nonprofit, none of whom are scientists or physicians engaged in advancing medical treatments. The people named as its top officers are longtime anti-abortion activists with a history of generating headlines.

Earlier this month, Planned Parenthood sued the center in a California federal court, alleging extensive criminal misconduct. The lawsuit says the center's videos involved making recordings without consent, registering false identities with state agencies and violating nondisclosure agreements.