David Daleiden’s day in court

MEGAN BASHAM, HOST: It’s Tuesday the 17th of September, 2019. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Megan Basham.

MARY REICHARD, HOST: And I’m Mary Reichard. First up, a pro-life legal battle.

David Daleiden and Sandra Merritt are pro-life activists who ignited major controversy four years ago. They’d released videos they’d recorded of abortion industry insiders. In those videos, Planned Parenthood executives spoke about buying and selling fetal body parts.

Here’s president of the Planned Parenthood Medical Directors’ Council in 2015, Mary Gatter,  negotiating pay for parts. You can hear the din of a restaurant, so listen carefully.

GATTER: Why don’t you start with what you’re used to paying?…I want a Lamborghini.

BASHAM: California’s attorney general at the time was Kamala Harris, now vying for the Democrat Party’s nomination for president. 

She charged Daleiden and Merritt for recording those videos illegally. They now face multiple felony counts of breaking the California law that requires all parties to know they’re being recorded. The activists are finally getting their day in court. And at the end of this two-week hearing, the judge will decide whether California’s current attorney general, Xavier Becerra has enough evidence to take the case to trial.

REICHARD: Tom Brejcha is a lawyer and co-founder of the Thomas More Society. That’s a law firm focused on religious liberty, and it represents David Daleiden. He joins us from San Francisco with an update on the case after yesterday’s preliminary hearing. He’s in a public place so you’ll hear the din in the background and need to listen carefully.

Good morning, Tom!

TOM BREJCHA, GUEST: Yes, good morning, indeed. We just finished our second to last day of testimony here in the felony division of the San Francisco Superior Criminal court.

REICHARD: And how’s it going?

BREJCHA: Yes, well I think it’s going very well. But it’s so hard to predict how the judge who’s going to be the sole decider of the issue at stake—which is whether the attorney general of California—had enough evidence to constitute probable cause, a low-threshold test, but nonetheless a significant test for bringing the 15 felony charges against David Daleiden and his helper Sandra Merritt. Fourteen charges of illegal eavesdropping under the California anti-eavesdropping law. And a 15th felony charge for conspiracy to commit that felonious eavesdropping.

REICHARD: Can you just briefly tell us what David Daleiden’s defense to that is?

BREJCHA: Well, the defense is that the statute only protects what we call confidential conversations and confidential is defined in the California statute to be conversations by the parties to which can reasonably believe may be overheard by other people. And we say David has maintained throughout his testimony, which took up yesterday and today, that the recordings, the undercover recordings that he and Sandra made of the abortionists and the fetal procurement technicians were always in public places or were in places where they could be overheard. And that he reasonably believed they could be overheard and that’s a defense. And I think we’ve made a pretty good showing that that was the case for all of the 14 alleged undercover recordings.

And the second defense is a really potent one for the pro-life movement and that is the California law does not apply if the alleged recorder of an unconsented to eavesdropping was indeed reasonably trying to find evidence of a crime involving violence against a person. And this is the pro-life argument put in as stark terms as could be. And we think it’s enough, more than enough to show there was no probable cause for the attorney general to believe that this was not a good faith effort to find evidence of violence, homicidal violence against unborn babies who were born alive and then killed for their organs so that fetal procurement specialists could dissect them. I mean, it’s almost embarrassing to have to talk about this awful stuff.

REICHARD: Has the testimony so far revealed anything we didn’t already know?

BREJCHA: Well, there are a lot of, there are nuances and insights that we gained through any clash of witnesses in open court like this. And, yes. Let me tell you this, Mary. It’s hard because we are, there’s such an effort on the part of the prosecutors when a connivance—I shouldn’t say connivance, but the support of the court to suppress a lot of the testimony and the details, the transcript, for example, that we’re getting on a daily basis is restricted to view by the attorneys. We can’t even share it with our client David Daleiden. Why is this? Because they claim that the reaction to these horrible disclosures is so negative and violent that it puts these abortion folks into deadly peril. The truth will be out and it’ll take some time, but—

REICHARD: So many twists and turns in the history of this case, so many parties are involved. Has any charge stuck against Planned Parenthood for its activites in marketing body parts, caught on videotape?

BREJCHA: Well, I mean, there are a lot of these doctors who are at the national abortion federation conventions where David did a lot of videoing and a lot of those people with whom he videoed conversations are called “victims” in this case and this is just the start, this criminal hearing. And more and more is going to come out about this and the details are, all I can say is compelling, and that’s an understatement.

REICHARD: Tom Brejcha is David Daleiden’s lawyer in the hearing going on now in San Francisco. Tom, thank you for taking time to talk with us today.

BREJCHA: Well, thank you very much and we appreciate your wanting to find out the truth.

(Washington Post / Getty Images) David Daleiden, founder of the Center for Medical Progress, in a 2015 file photo. 

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