Matt C. Abbott
Death-peddling devils deal David Daleiden a defeat - - for now
By Matt C. Abbott
A letter (edited) from the desk of Tom Brejcha, founder and president of the Thomas More Society...
–––––––––––––––
"This trial was rigged from the beginning," said David Daleiden about the 6-week trial that just concluded in San Francisco's federal district court. I'm afraid he's right. I'll tell you how this became all too evident all throughout these last difficult weeks in San Francisco's courtrooms.
The verdict couldn't have been any worse. David was slapped with a whopping $2.3 million verdict, including over $800,000 in so-called "punitive damages," which are warranted only when a defendant is proved to have acted with deliberate malice – totally absent here!
What's more, the judge could also assess David for millions more in abortion lawyers' fees, and those nasty lawyers will hound David mercilessly to collect every penny.
You can be sure that the Planned Parenthood abortionists popped champagne corks to celebrate.
As you know, a trial judge is supposed to be neutral, like a baseball umpire calling balls and strikes. But David's trial couldn't have been more slanted against him. Incredibly, our judge had even served as counsel for a "Good Samaritan" group that gave one of the same Planned Parenthood affiliates that has been suing David free office space as well as free "loaned" employees/helpers.
Because of the judge's connection to Planned Parenthood, he should've disclosed these facts to us and disqualified himself when the case was assigned to him. But he refused to do so – even after we found and documented these and other facts and filed a formal motion for his recusal.
Space limitations make it impossible to summarize the whole six-week trial, not to mention its preliminaries and our post-verdict agenda, in this short letter. But let me take you inside that courtroom and give you some glimpses of what happened.
I wish I had a dollar for every time the abortion lawyers and Planned Parenthood witnesses called David and his helpers "liars" for attending their conventions as undercover journalists. These smears were calculated to turn the jury against David. This tactic obviously worked.
Indeed, from the very outset of the trial, Judge Orrick had sharply – and impermissibly – narrowed the trial's (and the jury's) focus to questioning the legality of defendants' "tactics" in what David has called his "human capital project."
But David's use of those tactics was ripped from context! In preliminary instructions to jurors who had just been sworn in, the judge told them that the content of the videos – whether they were true or false, and whether the abortionists violated any laws – was not before them. Those issues, as Judge Orrick instructed jurors, were to be decided elsewhere, not in his courtroom. That was error.
Thus the jurors were to consider only whether the defendants' tactics were in violation of an entire litany of federal and state laws, including (among others) federal racketeering (RICO) laws and state fraud, trespass, contract, and eavesdropping laws.
And so, the jurors never saw most all of the content of David's videotapes (with only a few exceptions). Nor did they hear about the federal and state criminal investigations that David's videos had inspired. Nor did they hear about the Congressional official reports, compiled by the Senate and House investigators, detailing the abortionists' (and their body parts brokers') multiple egregious and continued violations of federal and state laws.
Nor did jurors hear that those year-long Congressional investigations culminated in more than twenty referrals to the U.S. Department of Justice and FBI for criminal investigations of Planned Parenthood and other abortion providers. Nor that those criminal investigations are still ongoing.
Nor did jurors hear about the Orange County, CA prosecutor's multi-million dollar civil settlement, including the banishment from California, of the baby body parts brokerage with which one of the plaintiff Planned Parenthood affiliates had been partnering, upon findings (sparked by David's videos) that it had resold body parts at huge monetary mark-ups, among other forms of wrongdoing.
Nor did the civil jurors hear our expert witnesses who had been allowed to testify at last September's criminal preliminary hearing before Superior Court Judge Christopher Hite, including the abortionist Dr. Forrest Smith and the expert stem cell researcher, Dr. Theresa Deisher.
You may recall from my letter of last month that the testimony of these experts proved that the abortionists' practices – as captured on David's videos – inevitably would produce live births of "fully intact fetuses" (babies!) whose vital organs – including beating hearts – would be harvested. This is not "mere abortion" but rather infanticide, systematic industrial-scale murder!
David designed an undercover project that qualifies as a splendid example of how undercover journalism ought to be done. Indeed, he and his helpers stand proudly in a long tradition of what we Americans call "muckrakers" (e.g., Upton Sinclair) – heroes in our history who uncovered otherwise hidden wrongdoing and, as a result, have sparked major achievements of social reform.
David undertook intensive research prior to undertaking his "human capital project." In prior years (2000) he saw an undercover TV report on ABC's 20/20 program, hosted by Chris Wallace and Connie Chung, which included an undercover video interview with a Kansas abortionist bragging about all the money he was making from the sale of body parts of aborted babies. A Congressional hearing was held. A stem cell harvester later swore he had never personally witnessed any body parts sales, but the abortionist's videotaped admissions to the undercover ABC investigator were never retracted.
David found no follow up action taken by Congress or elsewhere after ABC's broadcast. So he dug into published reports, interviewed body parts brokers posing as an interested research student, and found proof that a body parts marketplace was still flourishing despite federal and state laws banning this grisly, ghastly commercial trafficking done in the name of lavishly funded "research."
So he raised barely enough funds to start his project, recruited helpers, and created a company, "Biomax," which posed as a buyer/broker for what abortionists call "fetal tissue," i.e., the body parts of aborted babies. Then he set up a website for Biomax. He also cobbled together a few driver's licenses with his alter ego's undercover name, "Robert Sarkis." Thus "Sarkis" and "Biomax" attended abortion conventions, set up exhibit tables, and offered to buy body parts.
Now the key question is why did David do this? He did not do it for material gain. Unlike common fraudsters, tricksters, chiselers, scammers, or sharpies, David sought no material gain from his subterfuge. He raised just enough funds to penetrate the veil of secrecy behind which the abortion industry hides its innermost and darkest secrets, escaping public scrutiny or accountability.
That's not "lying, fraud, and dishonesty" which is outlawed by fraud laws. On the contrary, it's rather a good faith effort to shine a spotlight on hidden wrongdoing. This is how undercover journalism is done! How eager would the abortionists have been to discuss their illegal conduct with David if he had identified himself as a pro-life activist? The truths that he uncovered, he published for all to see and judge for themselves! He also took his findings to Congress and law enforcement.
David did his undercover journalism in an ethical, legal, and moral way for the public good after
consulting with medical, theological, and legal experts – such as Dr. Deisher, the stem cell expert scientist.
You may remember how Planned Parenthood's former CEO, Cecile Richards, stated soon after David's publication of the videos that they were embarrassing. Also, she faulted Dr. Nucatola, her top abortionist nationally, for having been videotaped while eating salad and sipping wine and discussing the demand for body parts, the techniques for harvesting them ("crush above... crush below" to enhance the quality and commercial value of the dead babies' bodily organs), and for bad judgment in discussing such things in an L.A. restaurant, which Ms. Richards called a public place.
But then Planned Parenthood sought out the notorious Democrat research firm, Fusion GPS, which purported to criticize the videos for deceptive editing. A cascade of major media reports ensued, disparaging David's videos as having been doctored or manipulated, i.e., for falsity.
These were lies. When push came to shove and Planned Parenthood's lawyers filed their lawsuit in early 2016, they brought a whole series of legal claims. Conspicuous by its absence, though, was any claim for defamation, libel or slander. They didn't dare question the truth of David's videos. The simple fact is that the videos were 100% true and accurate. Indeed, at the jury trial just held, the plaintiffs' lawyers expressly agreed that the videos were true and accurate.
This major concession should ultimately render this case a pro-life landmark in American jurisprudence, as it directly implicates the First Amendment and its guarantees of free speech and freedom of the press. For it is settled law – staked out in relatively recent precedential decisions, which Judge Orrick erroneously brushed aside – that absent any legitimate question over the veracity and truth of a published report, such as David's videos, the First Amendment forbids punishment – civil or criminal – of the publisher based on citizens' reaction to the content of the report.
At our urging, Judge Orrick made a pretrial ruling that "Planned Parenthood cannot recover for reputational damages or 'publication damages' under the First Amendment." This reduced the potential damages in the case from the astronomical figures (as much as $20 million) which Planned Parenthood had boasted it meant to recover from David and his helpers.
The teaching of the cases we cited was that journalists cannot be punished by law by reason of public reaction to the content of the published videos unless the videos themselves were proved to have been falsified. Here, their truth was not even contested. Thus misrepresentations merely to gain access to a convention or meeting to film matters of public concern are constitutionally protected, as plaintiffs presented no evidence that David's or his helper's statements were made for material gain or to inflict legal harm on Planned Parenthood.
On the contrary, these citizen journalists were investigating whether federal and/or state laws were being flouted. And indeed they were. No damages should have been awarded.
The rulings we cited were binding on Judge Orrick, including a recent decision handed down just last year (2018) by the 9th Circuit U.S. Court of Appeals, based in Judge Orrick's hometown of San Francisco. In that case a lower federal court ruling against animal rights protesters in Idaho who used undercover videos to publicize animal abuses was reversed on appeal. The 9th Circuit held: "[A] false statement made in order to access a ... facility cannot ... be characterized as made to effect a fraud."
David and his fellow investigators qualified as citizen journalists because they sought the truth and then published it for the benefit of law enforcement and their fellow citizens. This goes to the very essence of democracy, as citizens vitally need to learn the truth about matters of public interest – here, about whether laws touching the most sensitive matters of life and death were being compromised and whether stronger laws were needed.
Such issues are at the very pinnacle of newsworthiness, namely, the systematic disregard for laws relating to the sale of aborted babies' bodily organs, changing abortion methods to facilitate the commercial sale of body parts, altering medical treatment without patient consent while increasing patients' risks, and causing the demise of infants born alive with beating hearts.
The First Amendment bars government from restricting false speech unless it is "made 'for the purpose of material gain' or 'material advantage,' or [unless] such speech inflicts 'a legally cognizable harm.'" This recent, controlling ruling in favor of the animal rights protesters who were also undercover videographers was squarely based on prior U.S. Supreme Court rulings.
But Judge Orrick adamantly refused to heed the governing law that held that false speech to gain access to a facility to discover and then publish the truth about matters of public interest is constitutionally protected. Defying that law, he instructed the jurors in no uncertain terms:
"The First Amendment is not a defense to the claims in this case for the jury to consider. Defendants' argument that they were citizen journalists was admissible as context for the Defendants' case, not as a legal defense."
This as well as other jury instructions were delivered in utter disregard for the applicable federal and state law. Thus we expect that, unless Judge Orrick corrects himself in post-verdict proceedings, we'll have a good, winning appeal on this as well as other legal grounds.
The First Amendment was also our winning argument when we successfully defended pro-life activist Joseph Scheidler before the U.S. Supreme Court in a similar "racketeering" (RICO) lawsuit. It will ultimately be our winning argument when we get justice for David, funds permitting.
Barring this defense left us defending David with one hand tied behind our backs and made it virtually impossible to prevail at trial. Judge Orrick's errors were many:
Peter Breen gave an eloquent closing argument for David. The abortion lawyers in their closing argument smeared David over and over as a "liar" and reminded the jurors that they'd sworn a solemn oath to follow the judge's instructions to the letter. Our evidence about illegal practices was dismissed by plaintiffs' lawyers as a "distraction," as the judge's instructions had to be obeyed.
Thus, the judge stacked the deck in favor of Planned Parenthood, and we suffered through a long trial only to have it decided on the basis of "heads they win, tails we lose." We did, however, build up a strong record for appeal.
Indeed, we must appeal, just as we appealed the unjust verdict against the great pro-life pioneer Joseph Scheidler over 20 years ago after a similarly slanted trial. We knew David hardly had a chance for justice at trial. We must seek justice in a higher court, as we did once before.
© Matt C. Abbott
December 16, 2019
A letter (edited) from the desk of Tom Brejcha, founder and president of the Thomas More Society...
–––––––––––––––
"This trial was rigged from the beginning," said David Daleiden about the 6-week trial that just concluded in San Francisco's federal district court. I'm afraid he's right. I'll tell you how this became all too evident all throughout these last difficult weeks in San Francisco's courtrooms.
The verdict couldn't have been any worse. David was slapped with a whopping $2.3 million verdict, including over $800,000 in so-called "punitive damages," which are warranted only when a defendant is proved to have acted with deliberate malice – totally absent here!
What's more, the judge could also assess David for millions more in abortion lawyers' fees, and those nasty lawyers will hound David mercilessly to collect every penny.You can be sure that the Planned Parenthood abortionists popped champagne corks to celebrate.
As you know, a trial judge is supposed to be neutral, like a baseball umpire calling balls and strikes. But David's trial couldn't have been more slanted against him. Incredibly, our judge had even served as counsel for a "Good Samaritan" group that gave one of the same Planned Parenthood affiliates that has been suing David free office space as well as free "loaned" employees/helpers.
Because of the judge's connection to Planned Parenthood, he should've disclosed these facts to us and disqualified himself when the case was assigned to him. But he refused to do so – even after we found and documented these and other facts and filed a formal motion for his recusal.
Space limitations make it impossible to summarize the whole six-week trial, not to mention its preliminaries and our post-verdict agenda, in this short letter. But let me take you inside that courtroom and give you some glimpses of what happened.
I wish I had a dollar for every time the abortion lawyers and Planned Parenthood witnesses called David and his helpers "liars" for attending their conventions as undercover journalists. These smears were calculated to turn the jury against David. This tactic obviously worked.
Indeed, from the very outset of the trial, Judge Orrick had sharply – and impermissibly – narrowed the trial's (and the jury's) focus to questioning the legality of defendants' "tactics" in what David has called his "human capital project."
But David's use of those tactics was ripped from context! In preliminary instructions to jurors who had just been sworn in, the judge told them that the content of the videos – whether they were true or false, and whether the abortionists violated any laws – was not before them. Those issues, as Judge Orrick instructed jurors, were to be decided elsewhere, not in his courtroom. That was error.
Thus the jurors were to consider only whether the defendants' tactics were in violation of an entire litany of federal and state laws, including (among others) federal racketeering (RICO) laws and state fraud, trespass, contract, and eavesdropping laws.
And so, the jurors never saw most all of the content of David's videotapes (with only a few exceptions). Nor did they hear about the federal and state criminal investigations that David's videos had inspired. Nor did they hear about the Congressional official reports, compiled by the Senate and House investigators, detailing the abortionists' (and their body parts brokers') multiple egregious and continued violations of federal and state laws.
Nor did jurors hear that those year-long Congressional investigations culminated in more than twenty referrals to the U.S. Department of Justice and FBI for criminal investigations of Planned Parenthood and other abortion providers. Nor that those criminal investigations are still ongoing.
Nor did jurors hear about the Orange County, CA prosecutor's multi-million dollar civil settlement, including the banishment from California, of the baby body parts brokerage with which one of the plaintiff Planned Parenthood affiliates had been partnering, upon findings (sparked by David's videos) that it had resold body parts at huge monetary mark-ups, among other forms of wrongdoing.
Nor did the civil jurors hear our expert witnesses who had been allowed to testify at last September's criminal preliminary hearing before Superior Court Judge Christopher Hite, including the abortionist Dr. Forrest Smith and the expert stem cell researcher, Dr. Theresa Deisher.
You may recall from my letter of last month that the testimony of these experts proved that the abortionists' practices – as captured on David's videos – inevitably would produce live births of "fully intact fetuses" (babies!) whose vital organs – including beating hearts – would be harvested. This is not "mere abortion" but rather infanticide, systematic industrial-scale murder!
David designed an undercover project that qualifies as a splendid example of how undercover journalism ought to be done. Indeed, he and his helpers stand proudly in a long tradition of what we Americans call "muckrakers" (e.g., Upton Sinclair) – heroes in our history who uncovered otherwise hidden wrongdoing and, as a result, have sparked major achievements of social reform.
David undertook intensive research prior to undertaking his "human capital project." In prior years (2000) he saw an undercover TV report on ABC's 20/20 program, hosted by Chris Wallace and Connie Chung, which included an undercover video interview with a Kansas abortionist bragging about all the money he was making from the sale of body parts of aborted babies. A Congressional hearing was held. A stem cell harvester later swore he had never personally witnessed any body parts sales, but the abortionist's videotaped admissions to the undercover ABC investigator were never retracted.
David found no follow up action taken by Congress or elsewhere after ABC's broadcast. So he dug into published reports, interviewed body parts brokers posing as an interested research student, and found proof that a body parts marketplace was still flourishing despite federal and state laws banning this grisly, ghastly commercial trafficking done in the name of lavishly funded "research."
So he raised barely enough funds to start his project, recruited helpers, and created a company, "Biomax," which posed as a buyer/broker for what abortionists call "fetal tissue," i.e., the body parts of aborted babies. Then he set up a website for Biomax. He also cobbled together a few driver's licenses with his alter ego's undercover name, "Robert Sarkis." Thus "Sarkis" and "Biomax" attended abortion conventions, set up exhibit tables, and offered to buy body parts.
Now the key question is why did David do this? He did not do it for material gain. Unlike common fraudsters, tricksters, chiselers, scammers, or sharpies, David sought no material gain from his subterfuge. He raised just enough funds to penetrate the veil of secrecy behind which the abortion industry hides its innermost and darkest secrets, escaping public scrutiny or accountability.
That's not "lying, fraud, and dishonesty" which is outlawed by fraud laws. On the contrary, it's rather a good faith effort to shine a spotlight on hidden wrongdoing. This is how undercover journalism is done! How eager would the abortionists have been to discuss their illegal conduct with David if he had identified himself as a pro-life activist? The truths that he uncovered, he published for all to see and judge for themselves! He also took his findings to Congress and law enforcement.
David did his undercover journalism in an ethical, legal, and moral way for the public good after
consulting with medical, theological, and legal experts – such as Dr. Deisher, the stem cell expert scientist.
You may remember how Planned Parenthood's former CEO, Cecile Richards, stated soon after David's publication of the videos that they were embarrassing. Also, she faulted Dr. Nucatola, her top abortionist nationally, for having been videotaped while eating salad and sipping wine and discussing the demand for body parts, the techniques for harvesting them ("crush above... crush below" to enhance the quality and commercial value of the dead babies' bodily organs), and for bad judgment in discussing such things in an L.A. restaurant, which Ms. Richards called a public place.
But then Planned Parenthood sought out the notorious Democrat research firm, Fusion GPS, which purported to criticize the videos for deceptive editing. A cascade of major media reports ensued, disparaging David's videos as having been doctored or manipulated, i.e., for falsity.These were lies. When push came to shove and Planned Parenthood's lawyers filed their lawsuit in early 2016, they brought a whole series of legal claims. Conspicuous by its absence, though, was any claim for defamation, libel or slander. They didn't dare question the truth of David's videos. The simple fact is that the videos were 100% true and accurate. Indeed, at the jury trial just held, the plaintiffs' lawyers expressly agreed that the videos were true and accurate.
This major concession should ultimately render this case a pro-life landmark in American jurisprudence, as it directly implicates the First Amendment and its guarantees of free speech and freedom of the press. For it is settled law – staked out in relatively recent precedential decisions, which Judge Orrick erroneously brushed aside – that absent any legitimate question over the veracity and truth of a published report, such as David's videos, the First Amendment forbids punishment – civil or criminal – of the publisher based on citizens' reaction to the content of the report.
At our urging, Judge Orrick made a pretrial ruling that "Planned Parenthood cannot recover for reputational damages or 'publication damages' under the First Amendment." This reduced the potential damages in the case from the astronomical figures (as much as $20 million) which Planned Parenthood had boasted it meant to recover from David and his helpers.
The teaching of the cases we cited was that journalists cannot be punished by law by reason of public reaction to the content of the published videos unless the videos themselves were proved to have been falsified. Here, their truth was not even contested. Thus misrepresentations merely to gain access to a convention or meeting to film matters of public concern are constitutionally protected, as plaintiffs presented no evidence that David's or his helper's statements were made for material gain or to inflict legal harm on Planned Parenthood.
On the contrary, these citizen journalists were investigating whether federal and/or state laws were being flouted. And indeed they were. No damages should have been awarded.
The rulings we cited were binding on Judge Orrick, including a recent decision handed down just last year (2018) by the 9th Circuit U.S. Court of Appeals, based in Judge Orrick's hometown of San Francisco. In that case a lower federal court ruling against animal rights protesters in Idaho who used undercover videos to publicize animal abuses was reversed on appeal. The 9th Circuit held: "[A] false statement made in order to access a ... facility cannot ... be characterized as made to effect a fraud."
David and his fellow investigators qualified as citizen journalists because they sought the truth and then published it for the benefit of law enforcement and their fellow citizens. This goes to the very essence of democracy, as citizens vitally need to learn the truth about matters of public interest – here, about whether laws touching the most sensitive matters of life and death were being compromised and whether stronger laws were needed.
Such issues are at the very pinnacle of newsworthiness, namely, the systematic disregard for laws relating to the sale of aborted babies' bodily organs, changing abortion methods to facilitate the commercial sale of body parts, altering medical treatment without patient consent while increasing patients' risks, and causing the demise of infants born alive with beating hearts.
The First Amendment bars government from restricting false speech unless it is "made 'for the purpose of material gain' or 'material advantage,' or [unless] such speech inflicts 'a legally cognizable harm.'" This recent, controlling ruling in favor of the animal rights protesters who were also undercover videographers was squarely based on prior U.S. Supreme Court rulings.
But Judge Orrick adamantly refused to heed the governing law that held that false speech to gain access to a facility to discover and then publish the truth about matters of public interest is constitutionally protected. Defying that law, he instructed the jurors in no uncertain terms:
"The First Amendment is not a defense to the claims in this case for the jury to consider. Defendants' argument that they were citizen journalists was admissible as context for the Defendants' case, not as a legal defense."
This as well as other jury instructions were delivered in utter disregard for the applicable federal and state law. Thus we expect that, unless Judge Orrick corrects himself in post-verdict proceedings, we'll have a good, winning appeal on this as well as other legal grounds.
The First Amendment was also our winning argument when we successfully defended pro-life activist Joseph Scheidler before the U.S. Supreme Court in a similar "racketeering" (RICO) lawsuit. It will ultimately be our winning argument when we get justice for David, funds permitting.
Barring this defense left us defending David with one hand tied behind our backs and made it virtually impossible to prevail at trial. Judge Orrick's errors were many:
- He excluded crucial defense witnesses from the stand.
- He censored embarrassing facts for Planned Parenthood.
- He ruled Planned Parenthood's trafficking in aborted babies' body parts irrelevant.
- He ruled Planned Parenthood's profits from illegally selling aborted babies' body parts
irrelevant.
- He ruled Planned Parenthood's violations of federal law irrelevant.
- He shut down our cross-examination of Planned Parenthood abortionists.
Peter Breen gave an eloquent closing argument for David. The abortion lawyers in their closing argument smeared David over and over as a "liar" and reminded the jurors that they'd sworn a solemn oath to follow the judge's instructions to the letter. Our evidence about illegal practices was dismissed by plaintiffs' lawyers as a "distraction," as the judge's instructions had to be obeyed.
Thus, the judge stacked the deck in favor of Planned Parenthood, and we suffered through a long trial only to have it decided on the basis of "heads they win, tails we lose." We did, however, build up a strong record for appeal.
Indeed, we must appeal, just as we appealed the unjust verdict against the great pro-life pioneer Joseph Scheidler over 20 years ago after a similarly slanted trial. We knew David hardly had a chance for justice at trial. We must seek justice in a higher court, as we did once before.
© Matt C. Abbott
The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)
