Monday, January 25, 2016

Between Law and Party

Let me preface all of this by saying that like most white kids growing up in my part of Texas in the 1970s and 1980s, I was raised Republican.  My dad is a business owner and a Marine who served three tours of duty in Vietnam.  Fiscal conservatism and strong national security positions were and are important issues to my family.  As I grew older and became interested (and then involved) in criminal justice, I found that I identified more with the pro-Death Penalty and high sentences that were typical of the Republican platform.

In Harris County, the vast majority of my friends who seek elected office run as Republicans – from the District Attorney to Judge to Justice of the Peace.  Quite frankly, it is my personal (if biased) belief that the Republicans generally field the best criminal justice candidates in Harris County.  If a candidate wants to get elected to a countywide office, they are well advised to run as a Republican.  With the exception of 2008, the Republicans generally sweep.  As of this writing, I’ve only voted in Republican primaries.

While Getting Elected in Harris County 101 has consistently required winning the Republican Primary, it seems that more and more the key to winning that nomination is making sure that Republican voters know that you are the candidate who is the farthest to the Right on the political spectrum.  Sadly, that has led to the death of the moderate Republican candidate.  Even in the criminal justice system where issues like gay marriage, Syrian refugees, and abortion rights have virtually zero effect, Republican candidates must let the Party constituency know how violently opposed they are to all three of those things. 

The Republican kingmakers, Steven Hotze and Terry Lowry, audition all of the Republican candidates for their “endorsement” which comes with some purchased ad space in their “Slate” mailers.  Any candidate who hopes to gain their favor must toe the Party line if they want their endorsements.  Sadly the endorsements of Hotze and Lowry do, in fact, make or break elections.  I thought I knew the definition of the word “unseemly” until I watched how the Republican Machine works in Harris County.

Absolutely NONE of the Republican Party platform crap has any place in the Criminal Justice System.  Zilch.  The Law is what the Law is.   Slimy kingmakers who don’t have law degrees have no business attempting to dictate it.

The reason I write this long-winded preamble is because today, the Harris County District Attorney’s Office under Republican D.A. Devon Anderson showed that Law matters more than party politics. 

Last year, Republican Governor Greg Abbott and Republican (and currently indicted) Attorney General Ken Paxton asked the Harris County D.A.’s Office to investigate a series of disturbing videos produced by a group called the Center for Medical Progress, an anti-abortion group led by David Daleiden and Sandra Merritt.  As you may recall, the videos purported to have caught representatives of Planned Parenthood offering to sell fetal tissue and body parts for a fee.  The videos drew outrage, despite Planned Parenthood stating that they were doctored into a format that was extremely misleading.

Governor Abbott and General Paxton must have anticipated that their Republican friend D.A. Anderson would get an indictment against Planned Parenthood for attempting to sell body parts.  It would be great to show what a strong stand Texas is  taking against those murdering abortionists, right?  If no indictment panned out, Abbott and Paxton could say “hey, we tried” and point out it was Anderson who must have dropped the ball.

Unfortunately for Abbott, Paxton, and the gang at the Center for Medical Progress, the investigation didn’t turn out the way they hoped.  No indictments were issued against Planned Parenthood or anyone involved with that organization.  At that point, the D.A.’s Office and Anderson could have just said “oh well” and moved on.  They could have done a little speech about how the evidence was inconclusive and yada yada yada.

But the D.A.’s Office didn’t stop there. 

“We were called upon to investigate allegations of criminal conduct by Planned Parenthood Gulf Coast,” said [Devon] Anderson, a Republican.  “As I stated at the outset of this investigation, we must go where the evidence leads us.  All the evidence uncovered in the course of this investigation was presented to the grand jury.  I respect their decision on this difficult case.”

In a truly surprising move, the Grand Jury investigating David Daleiden and Sandra Merritt’s accusations against Planned Parenthood found probable cause to indict Daleiden and Merritt instead.  Both were indicted for the second degree felony offense of Tampering with a Governmental Record and Daleiden picked up an additional misdemeanor charge of attempting to buy a human organ.

The rejection of indictments against Planned Parenthood, coupled with the indictments of Daleiden and Merritt, tend to indicate that they were trying to pull something over on somebody.  As of this writing, copies of the indictment aren’t available on the Harris County website.  Whether they falsely made some identification to bolster their credibility, or whether the videos they made were ultimately considered to be falsified evidence is unclear at the moment.  Daleiden apparently was unaware that his attempt to purchase fetuses was illegal in and of itself. [UPDATE: The government documents that were falsified were fake California driver's licenses with fake names on them.  They are charged with using them with intent to defraud.]

It would be easy to think that the credit for these indictments goes solely to the members of the Grand Jury, but that would be misleading.  The District Attorney’s Office did not have to present the Grand Jury with the option to indict Daleiden and Merritt.  But they did.  And they should have.  And it was what Justice required.

For those keeping score at home, that brings the score to “Duty to Seek Justice: 1, Duty to Republican Party: 0.”

Make no mistake about this, Devon Anderson is about as pro-life as they come.  I’ve known her for a little over 15 years and her personal beliefs very much align with the Republican Party.  No one could ever accuse her of being a dreaded R.I.N.O.  I’ve seen her give speeches at Republican functions that would make Ronald Reagan pale in comparison.   She doubtlessly knew this would not sit well with her party, but she proceeded with integrity.

Governor Abbott, on the other hand, was a little less dignified.

“Nothing about today’s announcement in Harris County impacts the state’s ongoing investigation,” Abbott said.

Really?  Nothing?  Your two star witnesses in this case just got indicted for Tampering with Evidence and that doesn’t impact your investigation, Greg?  Didn’t you used to be Attorney General?  As a trial lawyer, I gotta tell ya, that’s kind of a big kick in the crotch from the old evidentiary standpoint.

Fortunately, it is too late for Devon Anderson to draw an opponent in the Republican Primary this election cycle.   The die-hard conservatives are already foaming at the mouth.  The conservative website The Federalist is already saying the indictments were unfair because Lauren Reeder, a prosecutor at the Harris County D.A.’s Office, is on the board of Planned Parenthood.  The intellectually dishonest article insinuates that Reeder had something to do with the indictments, when in fact, she was completely uninvolved with the case.  They post her personal information in some attempt to shame her, and, I suppose, shame Devon Anderson for employing her.  The Federalist is going to be really mad when they find out the D.A.’s Office hires gays, blacks, and Hispanics, too.

Things like Abbott’s boneheaded statement and The Federalist’s lame attempt at a smear campaign are what make me feel so very alienated from the Party I grew up in.  That level of vitriol and intellectual dishonesty is a far cry from the values I was brought up to respect.  Doing the right thing in the face of dire consequences is a much more admirable character trait.  That’s what true public service is about.

Today, Devon Anderson and her prosecutors at the District Attorney’s Office reminded me of that. 

And for that, I am profoundly grateful.


Anonymous said...

Good for you Murray! I couldn't agree more and am so glad you stood up and called a spade a spade. Huge kudos to the grand jury and Anderson. Regardless of whether you're pro-choice or pro-life, as folks in criminal justice, we should all strive to ensure the truth comes out, not further our political goals whether they be conservative or liberal. Maybe it sounds quaint these days, but I believe the criminal justice system is in place to seek truth and ensure justice is served. Unfortunately, Abbott and Paxton must have missed the day ethics was covered in law school. Truly disgraceful!

Unknown said...

I also grew up in a different Republican party: it was a party in the 1970's about fiscal conservatism. That is not the party of today, nor was it, unfortunately, the party of the GW Bush years when the party feasted on its majority to spend on its priorities at the expense of fiscal restraint.

The real lesson from these events is not to draw conclusions from often incomplete media reports. It is also true that the indictments notwithstanding, the people charged are still presumptively innocent: an indictment often means very little about whether there was actually a crime committed.

Today, some friends of mine expressed that they would support Cruz because he was a constitutionalist. A true constitutionalist would also recognize and empower the presumption of innocence, regardless of whose ox may be gored. It matters not whether it is these folks or someone charged with the capital murder of a police officer or a violent sexual assault of child. Either it applies to everyone or no one. Think about it. And, do not ever rely on media reports for forming an informed opinion.

Roger Chappell said...

Excellent points Murray. Integrity is everything in CJ. Apparently integrity and politics mix as well as oil and water. This case was handled as well as it should have been. But, you know there are people who are going to slam Devon or the grand just process as biased in their presentation.

Wxman said...

Thanks for your views on the matter. I don't agree with the pursuit of these indictments as I don't really see the point of charging Daleiden with buying an organ when he clearly had no intention of actively walking out of that building with one or obtaining one at a future date from those in that PP office. I actually wish they had just walked away unless this tampering indictment has a lot more chance than the buying an organ one. The fact that no intended seller was indicted or even identified only serves to weaken a case against the defendant. This is a waste of the taxpayers time to pursue that charge any further.

I would like your opinion on the likelihood of a plea down on the felony charge in order to get something from this or if you feel the DA will prosecute this case personally to trial. I just can't see her being able to avoid taking personal control of it at this point seeing the scrutiny her office will come under from outside. Do we know anything of the politics of the prosecutor who did present the cast to the Grand Jury? My understanding was that the DA did not do this in this case.


Roger Chappell said...

You've made some very astute observations that most in the public hang their hats on. Innocent until proven guilty and media bias. Bad news sells. Worse news sells more. Slanted political news like this story is platinum.

Anonymous said...

The press release said this was second-degree tampering with a governmental record. But the only way 37.10 is a second-degree is if it relates to car insurance. What's going on here?

Jason Truitt said...

It sounds to me like the Republican Party y'all grew up in is very similar to the Democratic Party I grew up in.

Wonder where y'all went off course?

Jason Truitt said...

"The fact that no intended seller was indicted or even identified only serves to weaken a case against the defendant."

No, it serves to show that Planned Parenthood did not break the law. This started as an investigation into Planned Parenthood. The fact that they followed the facts and the law gives the investigation far more credibility. I don't like the abortion providing part of Planned Parenthood, but they didn't break the law, and the defendants clearly did.

"This is a waste of the taxpayers time to pursue that charge any further."

While I don't really disagree, if Devon Anderson prosecutes trace drug cases as felonies instead of misdemeanors because that's how that particular crime is listed on the books, then she must also prosecute this crime that is listed in the books.

But hey, I'm sure you thought Greg Abbott's 26 lawsuits against the Obama administration were a waste of taxpayers time (and money!) as well, right? How about when he and Paxton tried to prevent the implementation of a ruling of the United States Supreme Court in Texas by advising county clerks that they could ignore the law and refuse to issue marriage licenses to same sex couples, which ended up in court and will end up costing loads of taxpayer time (and money!) before it's all through?

Do you only think things are a waste of time (and money!) when they violate your particular politics?

Eva said...

Cops obviously don't intend to buy drugs when they go undercover, either, but we still prosecute the dealer. This is no different. The fact that he did what the Penal Code specifically proscribes is what's at issue here. Making fake IDs and offering to buy something when the law says he can't do either of those things is the issue. The motive is not an element, and the organization involved is not relevant. All that's relevant are his actions insofar as burden of proof matters.

The politics of the prosecutor who presented the facts is also irrelevant (unless you know of a political party that is based on people's rights to make fake IDs?). Because other than high schoolers looking for a 6-pack, I'm unaware of any such organization (and high schoolers are woefully unorganized as a group, IME).

Stop trying to make this more than it is. It's just a couple of people who - like many others in Harris County - have to deal with allegations at the CJC. The whole thing is utterly unremarkable. Everyone loves the DA when she does her job until that *one* time when it doesn't go the way you want it to. That doesn't mean that it didn't go the way it was supposed to go.

Eva said...

anon 9:11 am:

37.10 says:
Sec. 37.10. TAMPERING WITH GOVERNMENTAL RECORD. (a) A person commits an offense if he:

(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;

(5) makes, presents, or uses a governmental record with knowledge of its falsity; or

(6) possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.

(2) An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the governmental record was:
(A) [...] a license, [...] or similar document issued by government, by another state, or by the United States, unless the actor's intent is to defraud [...] another, in which event the offense is a felony of the second degree;

so, basically, if he used a fake ID, it's a 2nd degree.

wx man said...

Have we ever had a case before a grand jury where witnesses in an ongoing presentation were indicted on unrelated charges to the original accused? Why doesn't that require another grand jury to consider such charges?

Anonymous said...

This case stinks. PPGC clearly IS in the business of selling baby body parts. The whistle blower was punished in this case.

We'd better get another DA. I won't be voting for her for allowing this to happen.

wx man said...

Eva your example of drugs seems backwards. We don't indict witnesses in an investigation of the dealer, but we tried to make the mental gymnastics of saying that a pro-life figure was wanting to buy body parts. What happened here seems to be equivalent to charging cops for pretending to buy drugs. Not sure why that is necessary when you already are securing an indictment for tampering.

wx man said...

Thanks for replying Jason. Let's leave my personal politics out of the whole thing since they don't fit into a a two party system dynamic in the first place.

If PP didn't break the law, there was in effect no seller/dealer. How can I as the prosecutor prove to a jury that a defendant, whose every political persuasion screams just the opposite, were intending to buy body parts? Law enforcement sting operation examples can't apply because neither party was acting in that regard. To me this seems to also fall into a category of whistle blower protections. That won't get the defendants off on the tampering issue but I just don't see how they are going to convince a jury of the buying charge.

Anonymous said...

Wow. The world is full of crazy hateful people. Some people say this happened because one of the two hundred and fifty prosecutors in the Harris County District Attorney's Office has some connection to Planned Parenthood. Others blame Devon for not personally making sure Planned Parenthood got indicted. Still others blame Judge Keel for putting her Grand Jury up to this.

Anybody that believes any of the above should tighten the tin foil on their head.

The ADA with the Planned Parenthood connection had zero contact with this case. Devon took an oath to follow the law. She did not personally present the evidence to the grand jury, that was randomly chosen from the jury pool. That grand jury believed that there was probable cause that crimes were committed by two individuals. By the way the two under indictment are presumed innocent, just like anyone from Planned Parenthood would be presumed innocent had they been indicted. Judge Keel was not in the grand jury, nor was she directing the grand jury. Grand juries are independent bodies folks. The grand jurors heard the evidence. None of the hateful crazies did.

When the cases go to trial, we will all know what the grand jury based its decisions on.

Anonymous said...

We get it. Some people so want to believe that PP was selling baby body parts that they leave logic and reason behind. They then try to turn this around as a whistle blower case as a means of conveying various levels of protection, much like we don't indict cops in sting operations. The fact is that these two jokers wanted to catch PP breaking the law but were not willing to let the lawful authorities handle the investigation, the way it is supposed to be to protect the rights of those involved and follow all the usual rules of conduct.

One defendant most certainly wanted PP to sell body parts. That was EXACTLY what he was looking for, in this case to prove they were doing so rather than use the body parts in some offensive manner. PP did not offer to sell such parts nor did they deliver such parts for compensation but that doesn't diminish the FACT that he offered to buy which is against the law. Both of them also falsified official government documents as part of their scheme, also against the law. Whatever comes of the case, it seems crystal clear that the two most certainly broke the law and will now be held accountable for it. Whether they plead guilty as part of a bargain or whether they go to trial and see what happens, it wasn't up to them to conduct such investigations. If they had evidence PP was violating the law, it was up to them to bring it to law enforcement, not play wannabe cops with no restrictions or accountability.

Those that think voting for Ogg or one of the other democratic candidates for the office to protest what the grand jury did might want to consider that electing someone far to the left of center would guarantee at least four years of far more offensive decisions than this, Anderson following the law instead of violating her oath of office.

Wxman said...

"One defendant wanted PP to sell body parts..."

That seems more like wishful thinking than anything that the prosecution can be expected to prove with a good defense attorney in a courtroom. I think it is more likely he released on the tape exactly what he went their to get. PP talking about breaking the law. That was all he stuck around for and all he believed he ever needed to push his narrative.

George Tallichet said...

Very Johnny Holmesish of Devon. Admirable. So good to know that we again have a District Attorney who isn't constantly licking his/her finger and holding it up to find out which way the political wind is blowing.

George Tallichet said...

Very Johnny Holmesish of Devon. Admirable. So good to know that we again have a District Attorney who isn't constantly licking his/her finger and holding it up to find out which way the political wind is blowing.

Anonymous said...

Oh, are we now accepting felony charges now on illegal aliens for possessing fake Id's?

Didn't think so.

Murray Newman said...

Um, yes. They take charges on "illegals" (as you call them) for fake IDs all the time.

Feel better now?

Jason Truitt said...

"Thanks for replying Jason."

It was my pleasure.

"Let's leave my personal politics out of the whole thing since they don't fit into a a two party system dynamic in the first place."

I don't believe I mentioned a party at all, just "your particular politics," which so far seem to be in line with one of the parties you say you don't fit into, but whatever. Feel free to let me know of a time that you were fine with the enforcement of a law despite it being contrary to your politics, and I will stand down on that.

"If PP didn't break the law, there was in effect no seller/dealer. How can I as the prosecutor prove to a jury that a defendant, whose every political persuasion screams just the opposite, were intending to buy body parts?"

You ever hear of a cop pretending to be a drug dealer? Pretending to be a prostitute? Cops don't actually (usually) sell the drugs, and cops don't actually have sex for money, but the buyer gets arrested and prosecuted. I know everyone wants to play internet lawyer here and talk about fancy things like mens rea, but it's not that complicated. They solicited things they weren't supposed to solicit.

"Law enforcement sting operation examples can't apply because neither party was acting in that regard."

Pay attention here, because this issue gets really tricky: you don't have to run a sting on a goofball that films his own crime. OK, maybe the 'tricky' part was sarcasm. This one is pretty easy after all.

"To me this seems to also fall into a category of whistle blower protections."

There are a lot of reasons why you're wrong here, not the least of which is that there was no law being broken to blow the whistle on. Others include he fact that there is no whistleblower defense to tampering with gov't documents, and that similar cases have resulted in prosecution and/or civil suits that have been upheld. Food Lion s the one being most discussed, but I heard mention of others.

"That won't get the defendants off on the tampering issue"

So after all this stink you've made--you agree?

Wxman said...

"You ever hear of a cop pretending to be a drug dealer? Pretending to be a prostitute? Cops don't actually (usually) sell the drugs, and cops don't actually have sex for money, but the buyer gets arrested and prosecuted."

Prosecuted yes, but what is it that convicts them? Intent. The prosecutor won't have an easy time convincing the jury that a pro-life activist really intended to buy something he is morally opposed to. It may seem a bit perverted to you, but it is a very viable reason why they did what they did with the videos and it has nothing to do with attempting to participate in illegal activity.

I guess I should have been more specific that I am thinking more ahead than about what happened Monday.

"Pay attention here, because this issue gets really tricky: you don't have to run a sting on a goofball that films his own crime. OK, maybe the 'tricky' part was sarcasm. This one is pretty easy after all."

End run. There was no crime being committed according to the grand jury's own findings when you follow it out to its logical conclusion.

"They solicited things they weren't supposed to solicit."

I can see the defense attorney slam dunking this right into the garbage can.

"Others include he fact that there is no whistleblower defense to tampering with gov't documents, and that similar cases have resulted in prosecution and/or civil suits that have been upheld."

I don't believe I was addressing the tampering charges in my remarks on whistleblowing. That being said I find it hard to believe that these two invented a new way to sneak into a place to film things like animal abuse, pollution or dumping, or human trafficking. I imagine the case law is pretty inconclusive on what might end up happening with the tampering charge. Could go either way. That is if the DA doesn't plead it down in six months to make a deal with the defense.

"So after all this stink you've made--you agree?"

I've never heard of intellectual inquiry and analysis being called a stink, but it is what it is.

"Feel free to let me know of a time that you were fine with the enforcement of a law despite it being contrary to your politics, and I will stand down on that."

As a libertarian my first inclination is not necessarily to ask is it legal. There are a lot of things in the annals of history that were legal and were then used against the spirit of the law. In libertarian circles there are people who are pro-life and pro-choice so there is not a set standard that I would be beholden to according to the concept of "party". For the most part, in many of these things people's political inclinations are irrelevant to the law and I accept that. So my politics doesn't matter by default to my trying to make some reasoned analysis of how this case plays out.

So nothing about this stink has anything to do with an emotional attachment I might have to the abortion issue. I will admit I do have a vested interest in seeing that the defendant's civil liberties are not roundly violated because of some political ax someone may be seeking to grind. You seem a reasonable person so I hope you would agree.

Anonymous said...

Eva and everybody else on what Sec. 37.10 says is TAMPERING WITH GOVERNMENTAL RECORD and why it's a crime.

(a) A person commits an offense if he makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;

(a) A person commits an offense if he makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record.

Does this mean we need to start arresting and charging all the high school and college kids using fake ID's and DL's to buy beer and get into bars? Talk about selective enforcement. Strict enforcement of that law would put every bar and liquor store in every college town out of business.

Of course, as someone much wiser than me once said, the best way to get rid of an unpopular law is to rigorously enforce it.

Eva said...


the difference is that this guy wasn't a witness to a crime. he committed a crime. the 1st Amendment protects a journalist's publication of information - not the methodology by which s/he obtains that information. a crime is still a crime, and - once committed - is subject to prosecution.

also, you're using the word "intent," but you're really talking about motive. a prosecutor must prove that a person intentionally, knowingly, recklessly, or negligently committed a crime (depending on the crime in question). those words have specific legal definitions that have nothing to do with a person's motivation for intentionally, knowingly, recklessly, or negligently taking the action in question. so, the 'why' of daleiden's actions are not an element of the crimes he's charged with committing - only the 'how' (intentionally, knowingly, recklessly, or negligently).

daleiden sent an email to PPGC asking to buy fetal parts for $1600 each before he came down to make his video. PPGC did not even respond to his email. that's where the organ purchase charge originated. the statute under which he's charged does not require the transaction to be completed - the fact that he made the offer is sufficient action to have violated the statute *whether or not he is morally opposed to any such transaction*. kind of like when someone offers to sell a cop drugs. the cop doesn't have to buy the drugs for the actor to have committed a crime, as the statute requires only an offer (same with prostitution). the statute in the organ charge doesn't require anyone to agree to the offer daleiden made in order for daleiden to have committed a crime. so the whole "if PPGC didn't sell him anything, how can he be a buyer" argument doesn't fit this scenario.

the caselaw isn't ambiguous on tampering with a government document. if you make a fake ID, you're subject to prosecution. your motive isn't relevant.

also, yes, GJs have indicted witnesses in cases where another person was originally the subject of investigation. an example of this is when the GJ determines that a witness has committed perjury during their testimony before the GJ. the GJ's function is to determine whether a crime has been committed. not every case the GJ considers results in an indictment, and there are certainly no restrictions on whom a GJ can indict from the evidence before them (other than the statutory requirements of the crime).

anon 3:39: yes. college kids can be prosecuted for presenting fake driver's licenses. it'll be a 2nd degree felony. all i did was answer your question on how this was a 2nd degree felony because you professed confusion.

finally, everyone should keep in mind that this decision was as far away from politics as it could be: the grand jury was empaneled under the new statutory requirements that it be pulled from a cross-section of the community. there was no "pick a pal" in play. this is as independent as a GJ gets. they looked at the evidence, and rendered indictments for the crimes that had been committed.

wx man said...

From a portion of Texas Monthly's article on the case,

"How can Daleiden be charged with buying fetal tissue, but Planned Parenthood not be charged with selling it?

Records indicate that Daleiden offered via email to purchase fetal tissue from the Planned Parenthood Gulf Coast facility for $1,600 per sample, but that the facility never responded. The misdemeanor from which Daleiden’s charge appears to stem, though, doesn’t mean that he actually needed to succeed in buying human organs (which includes from fetuses). It can be a crime to attempt to traffic human organs and fetal tissue, even if the entity you’re offering to buy from isn’t selling. (Think of it as trying to buy drugs from an undercover cop—the person who asks is still breaking the law.)

The misdemeanor charge is probably less likely to hold up in court than the felonies, though. At the very least, a question of letter-of-the-law vs. spirit-of-the-law means that since Daleiden’s intention wasn’t to illegally obtain human organs, but to find out if Planned Parenthood would sell it to him (which, to be clear, it would not), a halfway decent defense attorney could probably persuasively argue that applying that law in this case wouldn’t serve the intention of the people who wrote it."

- See more at:

wx man said...

Eva how would you defeat the defense when they remind the jury that there is letter of the law, but more importantly spirit of the law in the misdemeanor charge?

Eva said...


i don't want to infer your intentions or guess what your point is from the snippet of the article you posted.

i do see that, in the first paragraph you posted, the magazine's giving the same information i've provided. in the second paragraph, the magazine states that an attorney can make an argument (presumably to the ADA or a jury) that the legislators did not intend to apply this law to a situation such as this. such an argument (were it to be made) doesn't negate the validity of the statute both (1) as written and (2) as applied in this case. again, you're talking about daleiden's motivation for committing the crime (as is the magazine, though it uses the word 'intention'), which has a specific legal definition.

ultimately, this feels like an issue that's better addressed on appeal (where the appellate courts often do go into the legislative history behind a statute) than in the trial court. we'll see if it gets that far.

Eva said...

if i were prosecuting the case, i'd remind the jury of their duty to follow the law, and that if legislators intended for "i was just joshing" to be an affirmative defense, they would have made that an affirmative defense (just as in cases where a defendant argues entrapment or self-defense). instead, this scenario is akin to a DWI charge where the person was voluntarily intoxicated, and then argues they didn't intend to hit that pedestrian, or a statutory rape charge where the defense argues it was consensual in that the statutes i've cited don't allow those arguments as affirmative defenses. i'd remind the jury that he made a prohibited offer in an attempt to entice PPGC into engaging in a crime - something that ultimately didn't happen. every jury trial ends with the jury making the final call, though. once both sides have argued, it's out of their hands and into the jury's, and every jury is different. daleiden risks a jury that's offended by his methodology, while the State risks a jury that views this as you've described. the attorneys on both sides have a lot of work ahead of them, IMO.

Wxman said...

Thank you for your thoughtful reply Eva. It is interesting to see how both sides will try to argue for their interests in the case. Do you see any chance for a plea deal after tempers flare down and the case is off the front page for a few weeks? What do you suppose the DA really wants here? Is a show trial over the issue of abortion avoidable in this case?

I saw a tongue in cheek remark this morning where an observer wondered aloud if they would need to move the venue to Austin so that the DA would be able to get a fair trial lol.

Jigs said...

Just a guess, but I doubt Devon had much to do with the Grand Jury's action. Acting in the best Holmes' tradition, she empowers her assistants to just do the right thing, but if it's gonna hit the front page, give me a "heads up", I'll handle the heat.

Anonymous said...

I have no desire to engage on this blog in what I have observed over the years to scenarios which frequently deteriorated into ad hominem attacks by contributors, but I felt it appropriate to offer some observations before coming to a conclusion. It is beyond peradventure that the putative founder of what is now Planned Parenthood was Margaret Sanger. Sanger was a proponent of what has been characterized as negative eugenics, that is improving hereditary traits of the population by reducing the reproduction of those individuals found to be unfit. As an early feminist she believed that the reproduction of irresponsible and reckless people should be stopped and for those already alive and found to be unfit, that segregation or sterilization was the appropriate vehicle to achieve the cessation of the undesired characteristic. The primary calculus arrived at by Sanger to reach her goal of the acceptable society was birth control, the same means still embraced today, although now motivated solely by the feminist component as contrasted to Sanger's seminal goal of achieving the perfect society. It has been contended by detractors of Sanger that her means of attaining the desired objective, although different in methodology to that of World War II Germany, bears a disturbing similarity to an objective sought by both, the elimination of the unfit.
The Texas Penal Code defines a person as an individual, and the Code further defines an individual as a human being who is alive including an unborn child at every stage of gestation from fertilization until birth. Under Texas law a person with the requisite mental state, commits a homicide if one causes the death of an individual. Therefore, but for the United States Supreme Court decision in Roe v. Wade, it also would appear that Texas already has a law in play for the prosecution of one committing an abortion.
With the foregoing in mind I find it somewhat ironic that a Harris County grand jury, in coordination with the Harris County District Attorney's Office, has chosen to indict these two individuals who attempted to expose an allegedly grotesque and illegal practice or conduct for which there at least ostensibly has been some evidence at the national level. Rather than law enforcement apparently investigating allegations against Planned Parenthood it seemingly has chosen to employ its vast resources in investigating the more salacious crimes, such as prostitution, and seemingly a weekly feature in the Chronicle. Neither of these foregoing observations, however, in any wise are intended as a commentary on the viability of these prosecutions, that is whether or not the law has been violated, although I am amused by the accolades offered on this blog of the District Attorney Office's new found integrity, accolades which I have no doubt will be sort-lived and are but an aberration.
I do find reported matters and allegations vis-a-vis the investigations leading to these prosecution to be troubling, including the possible involvement or input of individuals both within and outside the Office motivated with less than an objective agenda, and the timeline at which the complainants became the accused. At this stage these are merely allegations and whether they ultimately will be found to be meritorious or not is of no moment, nor at this instance is the guilt or innocence of the accused. I suspect though that the defense will make this alleged involvement a centerpiece of their case and there will prosecutors called to testify. Unfortunately, however, the integrity of the Harris County District Attorney Office has been brought into play and no win situation has been presented by that office's further participation in these prosecutions. It is in the national spotlight. In my opinion I believe that the prudent approach would be to voluntarily disqualify and recuse the Office and request the judge of the court in which these cases reside to appoint an attorney to prosecute the cases.
Calvin A . Hartmann

Anonymous said...

I have news for everyone:

1. Juries, and judges, acquit defendants under the "spirit of the law" defense daily across this great land of ours. It is called "nullification."

2. Despite the new GJ system, 99% of the time, the Grand Jurors will follow the lead of the prosecutor that presents the case to them. Defendants are only allowed to testify in front of the GJ, but his/her attorney cannot be present in the GJ room. The prosecutor sets forth the tone of the whole proceeding. Do you really think the members of the GJ had the wherewithal to look into whether this "offering to buy fetal tissue" violation on their own? Please!

3. I respect the heck out of Devon, but with a situation this high-profile, and the potential political blow-back from indicting the folks trying to discover if PP was selling dead baby parts, I find it hard to believe that she was completely removed from the situation. Any prosecutor would be a fool to go in this direction without clearing it with her first. Not saying she did anything wrong, but she more than likely was fully aware of it before it came down.

As a prosecutor for almost 20 years, I have firsthand knowledge of #1 and #2. Number 3? Just sayin...

Eva said...


IMO, this case - like every other case in the CJC - has a chance to plead. you're right: it's more likely to happen (if it were to happen) after the fervor has died down somewhat. but given that his attorneys have admitted his guilt to several news outlets, daleiden has only one defense left to him: motive. he'll be relying heavily on a jury's sympathy if this proceeds to trial, and let's all remember that the general Texan public thought a PPGC indictment was a slam dunk because Texas, y'all. daleiden can't rely on Texas y'all as much as he thought he might be able to, given the current state of affairs.

a show trial is avoidable, but unlikely. daleiden is a self-professed activist. what better way to draw attention to a cause than to have what's sure to be a publicity-laden trial? marketing strategy suggests that a trial is likely - he's just going to have to have a clearer idea of his risk exposure before making that call (i think it's too early for him to make a good call on that at this time).

i still think it's funny that people are blaming Devon for a grand jury's decision. what happens if it goes to trial and the jury convicts daleiden and merritt? will they blame the judge? the prosecutor? the defense attorney? is it everyone's fault? this is the same process we rely on in scores of other cases - let the process do its job, i say. thanks for sharing the anecdote, wxman!

Eva said...

Calvin: we get it. you're anti-abortion.

Anon 3:09: we get it. you're anti-abortion, too.

i find that, often, the people most critical of a prosecutor's ethics are those who've been prosecutors themselves. mayhaps such folks know firsthand how far *they'd* go to get a conviction (truth be damned), and so suspect that *every* prosecutor is of the same ilk. news alert: not every prosecutor disregards the evidence.

the reason a GJ will often "indict a ham sandwich" is because that sandwich only rises to the level of probable cause. there's only one level of proof below that; PC is not hard to reach. it's also not hard to indict someone who has proudly crowed about how, exactly, s/he broke the law (as in this case).

there are 300 attorneys at the HCDAO. are we to recuse the office every time any one of those 300 professes an opinion? just because one person is such a zealot that they can't set their personal opinions aside doesn't mean everyone else is that committed to a dogma and equally incapable of impartially handling a matter (or, as in this case, assigning someone to impartially handle a matter). Mike Anderson died of cancer; should Devon recuse the office if a GJ indicts someone of stealing from a cancer patient? i'm sure she'd feel strongly about that, right? you're why people think all prosecutors are out to get a conviction regardless of whether someone's actually guilty. you're the reason that old "anyone can convict a guilty man, but it takes a real pro to convict an innocent person" saying rings true to the average citizen.

christ on motherfucking sale. there's no evidence that PPGC broke any laws. there is evidence to believe that daleiden and merritt presented fake government IDs. why is this so hard for folks to understand?

DPPooper said...

I new this wud happen. I told my freind Pig Folly that it wud happen to. He is my pal. I am vury smart and I can see the futur. Years ago when Devan was a judj before she lost in 2008, I had spies in her cort. These spies told me all about how she luvs abortionis. I held on to this valable intel becuz I new she wud lose being a judg and be Distric Atorny sumday and I cud say I tol yew so. Soon I will tell you more of what my spies tells me about the das orfice.

Even tho Im not an atorny I have used them plenty when I been sued or i sued sumbody. I do wish I had a badg tho. If I did I would show it all the time.

Wxman said...

I'll wait for the interpreter's transcript.

Anonymous said...

Can someone tell that idiot Hooper that it is Thomas More? Not Moore.

Murray Newman said...

So, apparently they make pop up books about Thomas More. Who knew?

He really broke out his finest tin-foil hat for his latest post. Big Jolly should change his slogan from ". . . because truth matters . . ." to "The Truth is out there . . ."

Eva said...

Shouldn't Rachel be able to explain to Don how a grand jury works?