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Why The Dropped Charges Against The Anti-Abortion Activists Is Not A "Vindication"

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Almost immediately after prosecutors decided, abruptly, to drop charges against the anti-abortion activists who infiltrated a Planned Parenthood facility in Houston using fake IDs, conservatives pro-lifers were calling it a "vindication." Even though the charges were dropped because of technicalities.

Sandra Merritt and David Daleiden had been charged with tampering with a government record, and Daleiden also had been charged with soliciting the sale of fetal tissue, after pretending to work for a fake fetal-tissue donation company called Biomax Procurement Services to go undercover at Planned Parenthood. They set up meetings with a representative to discuss what Planned Parenthood does with fetal tissue (donating it for medical research is legal, and Planned Parenthood has admitted to doing it several years ago). Then the activists secretly filmed the meetings and produced heavily edited "sting videos," in which they claimed they had proof that Planned Parenthood was illegally profiting from selling the baby parts.

Ironically, however, when a Harris County grand jury investigated the case, it cleared Planned Parenthood entirely and instead indicted Daleiden and Merritt in January for their shady tactics, prompting outrage from conservatives across the country. The Center For Medical Progress, the group the activists really worked for, said in a statement: "The Center for Medical Progress 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."

When the Harris County District Attorney's Office let them off the hook not because of the merits of the case, but because of technical procedural issues, supporters of Merritt and Daleiden considered it a validation of their defense. After the hearing, Daleiden told reporters, "I'm glad the First Amendment rights of all citizen journalists have been vindicated today." (To be clear, all journalists learn in J-school 101 that using fake IDs to "go undercover" will land you jail time, not a Pulitzer, which we discussed with a law professor in January.)

Melissa Hamilton, a visiting criminal law scholar at the University of Houston Law School, said that this case "isn't a vindication for anybody." And, she said, what's strange about this entire case is that the technicalities used to drop both  Daleiden's solicitation of the sale of fetal tissue charge and the tampering with government records charges are rarely ever seen. "Cases are dropped all the time for procedural issues—but not these," she said.

In June, Daleiden was off the hook for the ironic misdemeanor fetal tissue charge because of what the judge called a "defective indictment." Ironically yet again, prosecutors failed to explicitly state "exceptions" in the indictment, meaning they didn't list specific scenarios in which what Daleiden did would be legal—one scenario being soliciting the donation of fetal tissue. (Which was Planned Parenthood's own defense all along.) So the case was tossed.

"This suggests the DA's office did a negligent job of writing up the indictment," Hamilton said. "Of course I can't say whether that was intentional or not, but what's interesting on that one is they could have simply re-filed." 

At the time, the DA's office said in a statement it didn't want to refile because it was instead focused on the felony tampering with a government record cases. Yesterday, though, before a formal hearing was even held to consider the merits of the case, prosecutors decided to drop both cases altogether because of this vague reason listed in the case file: "claim raised regarding whether grand jury investigated new matters after extension order was issued."

The DA's office would not elaborate, saying only that prosecutors made this decision after "careful research and review," but what is presented to grand juries is a "secret." However, here's how Hamilton broke it down:

"This is rare not only because extensions to grand juries don't happen all the time, but the argument seems to be that the grand jury had considered new events. What's weirder is that there's nothing new here. There is no new information since last year. The only thing that can be new is if the district attorney's office decided to interpret the statute differently, but the curious thing is what would be the impetus of doing that now?"

Hamilton said that while speculating is difficult, it's impossible to ignore the political forces surrounding this highly controversial case. Immediately after the DA's office released the indictments in January, District Attorney Devon Anderson faced heated backlash from conservatives across the country. She responded to her critics by saying, "I believe abortion is wrong, but my personal belief does not relieve me of my obligation to follow the law.” It earned her plenty of respect—but didn't necessarily quiet the pro-lifers (in fact, even after the charges were dismissed, Merritt's legal team for the civil lawsuit Planned Parenthood filed against her, called Liberty Counsel, still described the original indictment as "politically motivated"). On top of it, Hamilton added, it's also an election year for the Republican district attorney.

"Because of the rarity of these technicalities," Hamilton said,  "the political nature of this makes what [Anderson] has done very curious—and that's probably the nicest I can say it."

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