Evidence emerged Tuesday explaining why Houston grand jurors charged with investigating misconduct by Planned Parenthood instead charged two antiabortion activists who had covertly filmed officials discussing the procurement of fetal tissue.
David Daleiden, 27, director of the Irvine-based nonprofit Center for Medical Progress, was indicted Monday by the grand jury on a felony charge of tampering with a governmental record, as was Sandra Merritt, 62, an employee at the center.
According to indictments released Tuesday, the pair used fake California driver's licenses to gain entrance to Houston-based Planned Parenthood Gulf Coast and covertly film on April 9, 2015. If convicted, they face a potential fine of up to $10,000 and maximum sentence of 20 years in prison.
Daleiden is also charged with a misdemeanor count related to purchasing human organs punishable by up to a year in jail and a $4,000 fine, authorities said.
"That charge was the result of an email he sent to Planned Parenthood employees in June 2015 and attached to that email was a proposal in which he offered to pay Planned Parenthood up to $1,600 per specimen" of fetal tissue, said Josh Schaffer, a Houston-based attorney representing Planned Parenthood Gulf Coast.
Schaffer noted that Planned Parenthood officials did not respond to Daleiden's offer, "but it does not matter under Texas law. There does not need to be an agreement or payment. The crime occurred when the offer was made."
Daleiden admits covertly shooting multiple videos, posted on the Center for Medical Progress website, including the Texas video in which he and Merritt question Melissa Farrell, director of research for Planned Parenthood Gulf Coast, about what types of fetal tissue she can provide on demand.
Daleiden declined to comment Tuesday through Peter Breen, his pro bono attorney from the Thomas More Society, a conservative nonprofit group based in Chicago. Breen is asking prosecutors to drop the charges, which he calls baseless.
"These laws were designed to catch criminals, not undercover journalists. If the information David gathered could have been obtained by a reporter showing up at the front door of Planned Parenthood, so be it. But what was clear is the staff of Planned Parenthood only opened up to David because he was there undercover," he said.
Breen said Daleiden and his team "documented the criminal activity of Planned Parenthood using standard undercover journalism techniques."
He would not say whether Daleiden and Merritt testified before the grand jury, although a filing in a related civil suit in California indicates Daleiden was subpoenaed.
"He cooperates with law enforcement," Breen said.
Daleiden posted a statement on his group's website in response to the indictments saying his organization "uses 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."
"Buying fetal tissue requires a seller as well. Planned Parenthood still cannot deny the admissions from their leadership about fetal organ sales captured on video for all the world to see," he wrote.
Daleiden and Merritt intend to turn themselves in, Breen said, but they were still in California on Tuesday, and it's not clear how soon they will be arrested and post bail. Daleiden's bail is set at $11,000, Merritt's at $10,000. Sheriff's officials have been working to ensure they appear in Houston to be fingerprinted and processed, Harris County Sheriff's Deputy Thomas Gilliland said.
The grand jury, which met for three months, found no wrongdoing by Planned Parenthood Gulf Coast, which cooperated with the investigation, allowing police and prosecutors access to staff, facilities and documents, Schaffer said.
"The grand jury never even considered an indictment against Planned Parenthood or its employees," Schaffer said.
Earlier this month, pictures of the two activists' fake licenses — as well as phony business cards and brochures — were provided to a San Francisco federal court by the National Abortion Federation when it filed a civil suit against Daleiden, Merritt and the Center for Medical Progress, demanding they be barred from releasing videos "illegally obtained" using fake IDs.
The lawsuit alleged that during the last three years, they and others used aliases and even formed a fake tissue procurement company, Biomax, to infiltrate Planned Parenthood medical conferences and healthcare centers in Colorado and Texas, illegally taping conversations of doctors and other medical providers.
Breen, who also represents Daleiden in that case, acknowledged the alleged deceptions but characterized them as undercover journalism. He said his clients have asked the court to allow them to release more videos, which they say show misconduct by Planned Parenthood.
The videos released so far sparked national outrage and investigations by Republican-led committees in Congress and by state officials, as well as a ninefold increase in threats and criminal activities against Planned Parenthood. So far, none of the investigations has uncovered wrongdoing by Planned Parenthood.
Despite the grand jury findings, Texas Gov. Greg Abbott and Atty. Gen. Ken Paxton have said the state is still investigating Planned Parenthood, as are officials in Arizona, Louisiana and Montana.
Melaney Linton, president and chief executive of Planned Parenthood Gulf Coast, called the investigations of her organization part of an "elaborate smear campaign."
"We will continue to fight back against these political attacks," she said.