Back in June, a judge dismissed the last of the charges against David Daleiden and Sandra Merritt, who were indicted in January 2016 by a Harris County Grand Jury on charges of tampering with government records for using fake identification and offering to buy fetal tissue at a meeting at which Planned Parenthood officials explained how they provided the tissue to apparent medical researchers.
They were a bit fortunate to get off on a bit of a technicality that time, as there was a legal issue with the grand jury’s term which had been extended during the investigation, and that allowed attorneys for Mr. Daleiden to argue that the grand jury didn’t have the authority to indict during the extension.
However, this week, the California Attorney General announced that he was filing 15 felony charges against the two – 14 in violation of California’s stringent eavesdropping law and one for a criminal conspiracy.
Attorney Tom Brejcha from the Thomas More Society, representing the two, was quick to argue, “When it comes to felony charges against our client, David Daleiden, history is on our side. When David Daleiden and Sandra Merritt were falsely charged in Texas, after they mounted a vigorous defense, the charges were abruptly dropped. We expect that the same will prove true in California.”
Mr. Brejcha stated, “The world knows that Planned Parenthood’s business partners, DaVinci Biosciences and DV Biologics, have been sued by Orange County, California. The lawsuit alleges that they illegally profited from the sale of human baby body parts from abortions. This confirms the truth of what has been depicted in Daleiden’s videos.
“David Daleiden and his co-defendant, Sandra Merritt, will be vindicated,” he continued. “They will assert robust defenses to these charges. Their efforts led to numerous criminal referrals by both Senate and House investigative committees. Their efforts were furtherance of First Amendment values and are clothed with the same Constitutional protection that all investigative journalists deserve and must enjoy. Undercover journalism has been a vital tool in our politics and self-governance.”
While Mr. Brejcha is playing a bit loose with the facts from Harris County, there is no such problem in California. These are very technical violations – akin to bringing down Al Capone for tax evasion – but they have real teeth.
As a journalist, one has to be very aware of California’s privacy law. Unlike many states, California requires two-party consent to record in any situation where one has a reasonable expectation of privacy. There are ways to avoid this – but they basically preclude the kind of surreptitious recording technique that Mr. Daleiden used.
The law goes back to 1967 when the California Legislature passed the “Invasion of Privacy Act” which uses criminal penalties to protect the right to privacy. Under Penal Code section 632, it is not just a crime to listen in on a private conversation when they may not know you can hear them, but it is a crime to use an electronic device to overhear or record a private conservation.
Ironically, while the law makes it a crime for citizens to eavesdrop, there is no such restriction for the police or law enforcement to do the same.
How far does this law extend? Well, California is one of the few states that requires parents to inform the nanny that they are using a nanny-cam to record their conduct.
As jury instructions explain, in order for eavesdropping to be a crime, it needs to have several specific characteristics.
First, it must be intentional. Accidental eavesdropping is apparently not illegal.
Second, it needs to take place without the permission of one of the parties. Both parties must consent to the recording. If one party consents but not the other, it is still criminal eavesdropping.
Third, the conversation needs to be confidential. While this might seem like a potential place where the defense can gain a foothold, under the law, this simply means that the conservation takes place “in circumstances that reasonably indicate that at least one party to the conversation intends for no one else to overhear it.”
Finally and most importantly, the eavesdropping needs to involve the use of a recording device either to overhear or record the conversation.
PC section 632(a) is considered a wobbler and therefore can be charged as either a felony or a misdemeanor. Charged as a felony, as it is, the penalty is punishable from between 16 months to three years in state prison. With 15 felony charges, they are facing substantial exposure.
“The right to privacy is a cornerstone of California’s Constitution, and a right that is foundational in a free democratic society,” said Attorney General Xavier Becerra. “We will not tolerate the criminal recording of confidential conversations.”
We suspect that, unlike the case in Harris County, the defendants will not skate on a technicality. That means, at some point, the defendants will have to cut some sort of deal or risk facing the maximum penalty and decades in prison.
Is that overkill? No doubt. Decades in prison for this sort of crime and 15 stacked charges is a clear overcharging by the AG’s office.
Some have suggested that the information discovered needed to come to the surface. That is a subjective assessment. However, as a journalist – which Mr. Daleiden is purporting to serve the function of in order to expose wrongdoing – you have to follow the law. Citizens have a right to privacy under the law and Mr. Daleiden appears to have blatantly violated that.
Could he have used other mechanisms to expose wrongdoing? That’s a question for another day.
For those who believe that Mr. Daleiden acted appropriately – would you condone the police busting down the door without a warrant or wiretapping without a court order? In this case you have a private citizen taking the law into their own hands and violating the rights of those involved – whether you believe the conduct warranted investigation or not, this wasn’t the proper way to do it.
Now the question is what the ultimate penalty will be here.
—David M. Greenwald reporting
Not completely true, video only nanny cams can be set up in CA without the caretaker’s knowledge as long as she’s not recorded in private places like bathrooms or her bedroom.
Not according to my legal expert – however if they are in the open perhaps that is sufficient.
Nope, from what I’ve read they don’t even have to be in the open.
https:// www. care. com/ c/stories/4337/nanny-cam-yes-or-no/ [moderator] edited
http://www. robertreeveslaw. com/ blog/nanny-cams/ [moderator] edited
[moderator] retrieved from spam filter, edited to break links
For some reason it won’t let me post links to the article.
[moderator] I broke the links. We’ll see if that gets it past the spam filter.
I haven’t read anything about having to have the cams out in the open.
https://www.care.com/c/stories/4337/nanny-cam-yes-or-no/
In fact:
http://www.huffingtonpost.com/lynn-perkins/to-install-a-nanny-cam-or_b_9211342.html
“These are very technical violations – akin to bringing down Al Capone for tax evasion – but they have real teeth.”
Ancillary felony law violations are not technical violations of of the primary felony allegation. For the defendants, unfortunately, the companion California felonies have lots of teeth because they are felonies, and in this instance are much easier to prove.
The defense deliberately spins the story to equate Texas law precedent as being applicable to California. It’s not, and again confirms that when a defense attorney goes to the masses with a highly-flawed story, it really means, “My client is screwed.”
LA Times Editorial calls AG overly aggressive:
I agree with much of this and the AG’s actions come across as a biased political witch hunt. If the CA AG’s office had a history of going after these types of recording cases regardless of the politics involved than they might have a lot more to stand on other than this looking like nothing but partisan politics.
My only problem with the LA Times analysis is their failure to recognize that this is the modus for all prosecutors.
How many civillian illegal recording cases have been tried in CA?
No idea
I’ll bet not much if any.
Probably true but this was an unusual situation with a high profile illegal sting by Daleiden.
Hypothetical question. Is it still a “witch hunt” if the witches are real ? Real laws were broken here in the name of journalism. Do any of you believe it is right to ignore those laws ?
15 felonies for investigative journalism? Up to 3 years for each felony count.
Don’t you think that’s a witch hunt? I do.
How many other people in CA have ever faced felony counts for investigatve journalism using an illegal recording? You can bet it’s only because they investigated a liberal/democrat pet cause, otherwise there would be no charges in my opinion.
Totally a biased political with hunt.
I think the only question is what they’ll plea down to.
It’s clearly overkill, but I think you’re still not asking the full question here – how many people have clearly illegally recorded people in the context of their “investigation.” And remember, Daleiden is not a journalist either, he’s a political activist, so you are mislabeling his activity.
“with the intent of discrediting the healthcare provider, Planned Parenthood — something his heavily edited videos failed to do.”
Your commentary misses a key point. Daleiden and company did not just publish the tapes in their entirety, something that would have been as you say simply “an effort to influence public opinion”. I would have defended this action as within their rights even if I did not like the implications.
What they did was entirely different. They took snippets of the tapes and used them to lie about what actually occurred in the interactions. Luckily they did it so clumsily as to be apparent to those completely untrained in editing such as myself and so were easily refuted. Nevertheless while they were not credible enough to significantly damage the reputation of PP here in California, they caused tremendous harm to both the institution and its patient’s across the country and their “journalism” is still being cited by politicians in their attacks on PP.
Got this note from a rep from NannyCam: “Loved your article, but please note that if a person is using a NannyCam without audio, in their own home, they do not need to inform the nanny. The use of hidden video and audio together in the same unit is where the violation of law comes in. Just the video alone in the home does not require consent as long as it is in the common areas of the home. Bathrooms and personal space such as a bedroom of the nanny would be off limits. Nanny Cams are legal in all states and without consent as long they follow the law regarding audio.”
in any case Daleiden used audio but fascinating to see who’s reading this stuff
Exactly what I posted above.