Howanti-abor­tion suit back­fired

The Denver Post - - OP-ED - NOAH FELD­MAN Bloomberg News

The in­dict­ment of anti-abor­tion ac­tivist David Dalei­den is a stark re­minder that the crim­i­nal law is a dan­ger­ous an­i­mal: Once it’s set free, there’s no telling who will be its tar­get.

Yet Dalei­den is ex­tremely un­likely to re­ceive any­thing but sym­bolic jail time if con­victed of the charge of mak­ing and us­ing a false Cal­i­for­nia driver’s li­cense in the course of his un­der­cover at­tempt to dis­credit Planned Par­ent­hood clin­ics in Texas. And de­spite what his sup­port­ers might say, the in­dict­ment doesn’t pose a threat to First Amend­ment val­ues or le­git­i­mate in­ves­tiga­tive jour­nal­ism.

An un­ex­pected turn­about put Dalei­den in crim­i­nal jeop­ardy. From the start, his goal seems to have been not sim­ply to make se­cret videos that would em­bar­rass Planned Par­ent­hood, but to show that cer­tain abor­tion clin­ics were vi­o­lat­ing a Texas law that crim­i­nal­izes the sale of fe­tal tis­sue. It’s law­ful for a clinic to do­nate the tis­sue, and to be re­im­bursed for its ex­penses in do­ing so. But Dalei­den ap­pears to have thought he could in­duce clinic rep­re­sen­ta­tives to sell tis­sue il­le­gally.

Re­gard­less of what Dalei­den meant to show, Texas Lt. Gov. Dan Pa­trick wanted to bring the crim­i­nal law to bear in the case. He asked Har­ris County District At­tor­ney Devon An­der­son to open a crim­i­nal in­ves­ti­ga­tion against Planned Par­ent­hood in Au­gust. An­der­son com­plied, and a grand-jury in­ves­ti­ga­tion en­sued.

Last week, the grand jury cleared Planned Par­ent­hood of any wrong­do­ing. But once it had ev­i­dence and, pre­sum­ably, tes­ti­mony be­fore it, the grand jury had the power to in­dict Dalei­den and an as­so­ciate, San­draMer­ritt, who par­tic­i­pated in mak­ing fake IDs.

We don’t know what hap­pened in the sealed grand jury room. But there are ba­si­cally two pos­si­bil­i­ties. One is that the grand jury went rogue, turn­ing on the ac­cusers of its own vo­li­tion. A good district at­tor­ney could ad­vise such a run­away grand jury not to in­dict peo­ple he or she con­sid­ered not to have com­mit­ted crimes. But tech­ni­cally, it’s the grand jury that in­dicts, not the pros­e­cu­tor. The fi­nal de­ci­sion lies with it.

The other pos­si­bil­ity is that An­der­son, the Repub­li­can district at­tor­ney, guided the grand jury to its in­dict­ments. That’s the more nor­mal course, be­cause typ­i­cally the only lawyer in the room is the pros­e­cu­tor. The old ex­pres­sion has it that pros­e­cu­tors can per­suade grand ju­ries to in­dict a ham sand­wich if they re­ally want to. That’s an over­state­ment, but not by much.

If that’s in­deed what hap­pened, An­der­son must’ve un­der­stood that she’d come un­der fire from fel­low Repub­li­cans. The best ex­pla­na­tion is that, look­ing at the ev­i­dence, she gen­uinely thought Dalei­den andMer­ritt should be charged with a crime. Pros­e­cu­tors are like that: They want to pun­ish crim­i­nals when the ev­i­dence of the crime is squarely pre­sented.

So what will hap­pen to the de­fen­dants? The felony of al­ter­ing a govern­ment doc­u­ment is pun­ish­able by up to 20 years in prison. But it’s a safe bet that Tex­ans who make fake IDs— say, so un­der­age kids can buy al­co­hol— aren’t get­ting 20-year sen­tences un­der nor­mal cir­cum­stances.

It’s an un­for­tu­nate fact of mod­ern crim­i­nal lawthat max­i­mum sen­tences are set out­ra­geously high. In the­ory this al­lows judges to im­ple­ment ex­treme pun­ish­ment for an ex­treme case. In prac­tice, it gives lev­er­age to pros­e­cu­tors to ex­tract a plea bar­gain from de­fen­dants.

The up­shot is that one would ex­pect Dalei­den andMer­ritt to plea-bar­gain in ex­change for min­i­mal or zero jail time. If they do go to trial as a mat­ter of prin­ci­ple, they would still be un­likely to get long sen­tences. Their use of fake IDs wasn’t nar­rowly self-in­ter­ested. In their own mis­guided way, they were try­ing to do good.

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