State high court lifts stay on prosecution of anti-abortion activists

Prosecutors can proceed with criminal conspiracy charges against two anti-abortion activists in connection with filming Planned Parenthood staff allegedly discussing the sale of fetal tissue after the state Supreme Court lifted a stay it previously imposed.

Attorneys from the Thomas More Society and Steve Cooley & Associate, represent two activists who described themselves as undercover journalists and were charged with secretly recording confidential conversations with Planned Parenthood officials. The attorneys petitioned the high court to review the lower court's decision to deny its motion to dismiss and to examine state Attorney General Xavier Becerra's "tight" relationship with Planned Parenthood. In April, the high court halted proceedings in the criminal cases against the Center for Medical Progress employees, pending its review.

On Wednesday the court denied the petition for review and vacated its stay.

"We were hopeful when the court stayed the proceedings, because that meant out of the many thousands of these petitions they get there was a good sign the Supreme Court looked at our case," Peter Breen, vice president and senior counsel at Thomas More, said Thursday. "As they should; The issues here are serious and there are implications here about the rights of undercover journalists going forward."

"You can't just prosecute the pro-life journalists. You'd have to prosecute all of them going forward," he continued.

San Francisco County Superior Court Judge Christopher C. Hite has been overseeing the criminal case against David Daleiden and Sandra Merritt, employees of Center for Medical Progress who covertly recorded a meeting they had with abortion providers and a business that supplies fetal tissue for research. People v. Daleiden and Merritt, 17006621 (S.F. Super. Ct., filed March 28, 2017).

The duo publicly released the recordings, which they said proved abortion providers were selling tissue from aborted fetuses for profit, prompting investigations into Planned Parenthood and similar groups. The investigations led to calls to withhold federal funding from Planned Parenthood. One appellate judge upheld a Texas cut in funding to the group based, in part, on his review of the recordings.

Breen called the California criminal case "politically motivated prosecution," citing Planned Parenthood's sponsorship and hosting of Becerra's primary election party.

Beyond that, the attorney general has backed Planned Parenthood's motion to intervene in the criminal prosecution of both defendants, which defense attorneys claim is an attempt to bolster the nonprofit's federal civil suit against the defendants. Planned Parenthood Federation of America Inc. v. Center for Medical Progress, 16-CV00236 (N.D. Cal., filed Jan. 14, 2016).

"It's a shame [the Supreme Court denied review] because it's an issue of first impression," said Brentford J. Ferreira, an attorney at Cooley who filed the petition for review. "To allow a party [Planned Parenthood] that is suing my client in federal civil court under the same statute, to let them try to get a criminal conviction against my client is a conflict of interest that's just outrageous."

In September, Hite denied the defense's motion for an evidentiary hearing to recuse Becerra as well as its motion to dismiss, noting the Legislature's effort to "reduce the number of unnecessary hearings."

When the 1st District Court of Appeal denied review, defendants petitioned the state Supreme Court.

Nicolaie Cocis, who filed the petition for review on behalf of Merritt, said the court missed an opportunity to settle an unsettled area of law: The California Penal Code is clear on the standard for recusing local prosecutors but not for recusing the attorney general.

"We argued when you recuse the attorney general, it is by a standard of an appearance of conflict of interest," Cocis said. "We showed to the court here there is, at a minimum, an appearance if not an actual conflict of interest."

The attorney general's office did not respond to a request for comment.

A telephonic conference set for June 3 will likely result in a new date for Daleiden's preliminary hearing. The defense plans to file another motion to dismiss based on an affirmative defense. Cooley and Ferreira claim their client is exempt from the eavesdropping law because he was investigating violent felony conduct and that the recordings were not illegal because they were made in public places where the conversations could have been overheard. "Our client committed no crime," Ferreira said. "This is a political prosecution brought as a favor to Planned Parenthood."