In rare move, state high court stays criminal case against anti-abortion activists

SAN FRANCISCO -- The state Supreme Court granted a last-minute stay blocking a hearing to decide whether California's top prosecutor has enough evidence to take the case of two anti-abortion activists charged with secretly recording confidential conversations with Planned Parenthood officials to a jury.

The activists' attorneys argued state Attorney General Xavier Becerra has a "tight" relationship with the organization's executives and is selectively prosecuting the case.

"Why was this prosecution selectively aimed at our clients but similar behavior is ignored on part of other undercover journalists," asked Thomas More Society President and Chief Counsel Tom Brejcha. "This is a politically biased prosecution."

The state high court temporarily halted on Friday the preliminary hearing and will decide whether to review San Francisco County Superior Court Judge Christopher C. Hite's decision denying the defense's motion to dismiss the case or, at a minimum, recuse Becerra.

Becerra charged Center for Medical Progress employees David Daleiden and Sandra Merritt with 15 counts of invasion of privacy and conspiracy in 2017.

Hite also stayed Daleiden's preliminary hearing after the California Supreme Court stayed Merritt's case. Daleiden will file an appeal to the state Supreme Court by Thursday, according to defense attorney Steve Cooley.

Attorneys involved in the case and outside legal observers all said the high court's decision was unusual.

"It's very rare and it bodes very well for each of the defendants in this case," Cooley said.

The legal battle centers on the duo meeting with reproductive health care providers and a business that supplies fetal tissue for research, covertly recording their conversations and releasing edited versions online. People v. Daleiden and Merritt, 17006621 (S.F. Super. Ct., filed March 28, 2017).

Daleiden and Merritt claimed their recordings proved abortion providers were selling tissue from aborted fetuses for profit, prompting investigations into Planned Parenthood and similar groups. While those investigations did not prove the accusations, they prompted calls to withhold federal funding for abortion programs.

Cooley said the attorney general's office has never pursued a criminal case against undercover journalists. When reporters from different media outlets and animal rights groups conducted allegedly illegal and covert investigations with hidden cameras, Becerra argued those were in the public interest without fully investigating the matter, he continued.

Becerra is prosecuting this case because of an "extremely tight link" between himself, former Attorney General Kamala Harris and Planned Parenthood executives, according to Brejcha. The nonprofit organization sponsored and hosted his primary election party, where he had a sign that read, "I stand with Planned Parenthood."

The organization also contributed to his campaign.

Rivserside attorney Nicolai Cocis and Horatio G. Mihet of the Liberty Counsel, who filed the petition seeking a stay and a review by the Supreme Court, said the standard for the state's top prosecutor to recuse himself is simply the appearance of impropriety.

"The standard is very low," Mihet said. "When we have a long history of undercover investigative journalism that's gone unprosecuted, and that this is the first case that's being brought exposing criminal conduct in the abortion industry, those dots connect very easily as to what's happening."

A spokesperson for the attorney general could not be reached for comment Monday.

Hite denied the defense's motion for an evidentiary hearing to recuse Becerra and dismiss the case in September, noting the Legislature's effort to "reduce the number of unnecessary hearings," according to the order. The 1st District Court of Appeal denied review.

Clinton & Peed partner Gregory M. Lipper, who is not involved in the case, cautioned to take the Supreme Court's order to temporarily halt the case with "some grains of salt." The case is factually different than other investigations by undercover journalists because it is undermined by "flagrant misrepresentations" during the reporting process by the defendants, he said.

"There was a clear line that was crossed," he said. "It could be a defensible prosecution but notwithstanding that, given it arguably implicates newsgathering and that Planned Parenthood was a strong supporter of Becerra, the California high court has concern about the appearance of impropriety."

Brejcha said he anticipates the Supreme Court will review the issue and that it will eventually make its way to the U.S. Supreme Court.