On July 11, 2017, the two criminal defense attorneys for undercover citizen journalist and pro-life hero, 28 year old David Daleiden, were found in civil contempt of the federal court in San Francisco, for having published videotapes of the National Abortion Federation annual meetings, held in 2014 and 2015, in violation of a preliminary injunction that had been entered by U.S. District Judge William H. Orrick. That injunction had been affirmed by a three-Judge panel of the 9th Circuit U.S. Court of Appeals, sitting in San Francisco, and it will soon be petitioned for review by the U.S. Supreme Court as an unconstitutional censorship decree and a “prior restraint” on the free speech rights of Daleiden and his company, the Center for Medical Progress (CMP).
Daleiden’s criminal defense lawyers, who have appeared for him in the criminal felony prosecution brought by California Attorney General, Xavier Becerra, include the former elected District Attorney for Los Angeles County, Steve Cooley, who served over a decade as head of the largest county prosecutor’s office in the U.S. and narrowly lost a statewide election for California Attorney General, to Becerra’s predecessor, Kamala Harris, as well as Cooley’s former chief assistant in the L.A. prosecutor’s office, Brentford Ferreira. Ms. Harris is now California’s junior senator serving in Washington, D.C.
Cooley and Ferreira, who were themselves represented by L.A. attorney, Matt Geragos, argued that they had released and published the videos in good faith, believing the publication was needed to mount an effective defense of Daleiden against the 15 felony charges that Becerra filed against Daleiden last March. Then Becerra charged that Daleiden and a partner had invaded the privacy rights of fourteen alleged anonymous “victims” in violation of the California Eavesdropping Law, which bans non-consensual surreptitious recording of private, confidential conversations which cannot be overheard by third parties. But the defense lawyers argued that they could not adequately defend the charges as the undercover recordings showed that the defendants had numerous conversations with other persons and therefore they could not determine which conversations were pinpointed in Becerra’s felony charges. Moreover, they argued that many conversations took place in public areas where numerous passersby may easily have overheard the alleged victims’ conversations. Federal suppression of the videos’ contents, they argued, would thereby deprive Daleiden of a fair trial and fatally undermine the entire criminal prosecution. They also argued that federalism concerns barred federal judicial interference with the state criminal process.
Judge Orrick is expected shortly to issue a written opinion, specifying whatever sanctions he may impose on the criminal defense lawyers, for which he said that Daleiden and CMP would be held jointly and severally liable as the criminal defense lawyers were acting as their agents.
Tom Brejcha, President and Chief Counsel of the Thomas More Society, which has been underwriting Daleiden’s and CMP’s criminal defense, said, “Yet another appeal seems in order here, for as the L.A. Times editorialized, California’s felony criminal prosecution of these pro-life undercover journalists was a gross ‘overreach’ as two massive federal cases were already pending against them in Judge Orrick’s federal court. The pendency of simultaneous federal civil cases proceeding side-by-side with such a major state criminal prosecution of multiple felonies was bound to breed the most serious and grave complications, not to mention the miscarriage of justice. Must the pro-lifers’ criminal defense lawyers seek prior federal permission before summoning or cross-examining prosecution witnesses, or introducing videos or other documentary evidence into the trial record? Must the state court Judge, Hon. Christopher Hite, consult with the federal Judge, Hon. William Orrick, before ruling on objections to evidence? And who is actually directing the criminal case, Attorney General Becerra, or the federal civil plaintiffs, the National Abortion Federation and Planned Parenthood Federation of America, who lobbied him and his predecessor, then Attorney General Kamala Harris, to bring these excessive felony charges? We will carry on with efforts to see that justice is ultimately achieved in these troubling cases.”