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 In a surprise move disclosed on Monday, a grand jury in Harris
County not only cleared Planned Parenthood's Gulf Coast affiliate
but also indicted the two anti-abortion activists, David Daleiden
and Sandra Merritt, who had prompted the probe in the first place.
They have both been charged with using fake driver's licenses and
Daleiden for violating Texas' prohibition on the purchase and sale
of human organs - the same law he accused Planned Parenthood of
breaking - when he sent an email to Planned Parenthood seeking to
buy fetal tissue. Their lawyers say they have done nothing wrong.
Planned Parenthood's legal strategy was in some ways similar to how
corporations facing major white-collar criminal investigations often
cooperate closely with prosecutors to try to influence the outcome.
From the start, Planned Parenthood and its Houston lawyer Josh
Schaffer settled on a strategy of cooperating with investigators,
said Rochelle Tafolla, a spokeswoman for the affiliate. It included
volunteering documents and encouraging prosecutors to interview
employees, as well as giving prosecutors tours of the Houston
facility, according to Schaffer.
"We certainly began the process as suspects of a crime, and the
tables got turned and we ended up victims of a crime," Schaffer told
Reuters in an interview.
 Schaffer was retained by Planned Parenthood last summer when Texas
officials demanded it face a criminal investigation after the
anti-abortion activists posted videos online purporting to show the
organization's employees discussing the sale of aborted fetal
tissue, which is illegal in the United States if done for a profit.
The videos produced by Daleiden's Center for Medical Progress were
secretly filmed at Planned Parenthood clinics, such as its Houston
facility, and including at least one conversation in a restaurant.
Planned Parenthood said it has done nothing wrong and commissioned
an outside study that said the videos had been deceptively edited.
According to Planned Parenthood, officials have cleared it of
wrongdoing in 12 U.S. states in the wake of the allegations.
STARTED A DIALOGUE
Schaffer said very soon after he was hired he began a dialogue with
prosecutors in Harris County, which includes much of Houston, about
the details of the case, and kept that going throughout.
The office of Harris County District Attorney Devon Anderson
declined an interview request. Anderson said in a statement on
Monday: "All the evidence uncovered in the course of this
investigation was presented to the grand jury. I respect their
decision on this difficult case."
A Republican who has been the Houston area's prosecutor since 2013,
Anderson last summer pledged a "thorough investigation" and a
prosecution to the full extent of the law "should we find that laws
were broken." Campaign material from her 2014 race for district
attorney described her as a "proud, pro-life Texan mother of two."
Although what happened during the grand jury's secret deliberations
may never be known, Schaffer said it did not vote on whether to
indict Planned Parenthood.
That is because the grand jury’s focus shifted to a case against the
anti-abortion campaigners, Schaffer said on a conference call with
reporters, citing information he said he received from a prosecutor.
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Planned Parenthood said that Daleiden and Merritt used fake driver's
licenses in April 2015 when they posed as executives from a
fictitious company to secretly film conversations at the Houston
facility. That led to the charges they used fake government
documents with the intent to defraud.
One critical juncture in the case may have occurred when Planned
Parenthood gave law enforcement an important tip: Merritt's true
name, according to Schaffer.
Her identity remained unknown from the time she visited Planned
Parenthood with a fake California driver's license until about
December when Daleiden revealed it during a deposition as part of a
separate civil lawsuit in state court in Los Angeles, Schaffer said.
As part of his strategy, Schaffer said he explicitly pushed
prosecutors to charge Daleiden and Merritt.
"I made the argument regarding the charges that the grand jury
returned," Schaffer said in the interview, "but I did not have to
make them very forcefully because it was self-evident to the
prosecutors that they engaged in this conduct."
PROTECTING SOURCES
Peter Breen, a lawyer on Daleiden's defense team, said the grand
jury misapplied Texas law, indicting the two under an anti-fraud
statute meant to be used against identity thieves, not against
people trying to uncover wrongdoing.
Terry Yates, a Houston lawyer representing Merritt and Daleiden,
told reporters the grand jury’s indictments “are legally and
factually insufficient and are not going to hold up under the weight
of the law.”
Daleiden, who says he uses journalistic techniques, could not have
cooperated with Texas authorities’ as extensively as Planned
Parenthood without surrendering his rights as an investigator, Breen
said. He needed to protect his sources and methods, including
Merritt’s name, and he posted what relevant information he had
online, the attorney said.
"Numerous law enforcement and legislative bodies across the country
have reached out to David," Breen said. "He has done everything he
can to cooperate with their investigations."
Breen said he did not want to speculate as to why an investigation
that began focused on Planned Parenthood suddenly turned on its
accusers instead, but he said the district attorney should use her
authority to drop the charges.
(Reporting by David Ingram and Jilian Mincer in New York; Additional
reporting by Jon Herskovitz in Austin; and Ruthy Munoz in Houston;
Editing by Amy Stevens and Martin Howell)
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