Thursday, February 4, 2016

[UPDATE: DALEIDEN REFUSES OFFER] Probation Offered to Undercover Investigator of Planned Parenthood

As predicted by the Bear, prosecutors in Texas have offered undercover videographer Sandra Merritt pre-trial diversion that could make the charge go away entirely if she behaves herself.

Two things surprise the Bear, though. First, one might say the mountain labored and brought forth a mouse. No time behind bars? Not even a conviction? Remember, this a supposedly a 20 years in prison case. They must really not want to get this anywhere near trial. Second, it is extremely unusual to present a felony defendant with a plea bargain the first time the defendant is in court! The defense has not had time to review discovery, subpoena materials (maybe), and assess the evidence.

On second thought, maybe not so strange after all.

It sounds like an offer she can't refuse. Once you go to trial, anything can happen. The Bear was always very conservative. It appears the State of Texas has accomplished whatever it wanted to accomplish and is ready to wash its hands of the sorry mess.

David Daleiden is set to turn himself in Thursday. We'll see if he gets the same offer. It would be unusual to treat two co-defendants who are similarly situated differently.

UPDATE: According to the Star-Telegram, Daleiden was made the same offer, but has already refused to accept it, saying he wants to go to trial.

First, defendants get to make the call on whether they accept or reject a plea bargain. So this is Daleiden's call. We have no idea what his lawyers have advised him.

Second, this is risky. Maybe not 20 years of risky, but neither does it guarantee diversion with the likelihood of dismissal of charges. Defense counsel lore has it that defendants who take a case to trial often face an unofficial "trial tax," i.e. heavier sentencing. Daleiden is probably not going to show any remorse, something judges really, really like to see. Many potential factors might be taken into account to increase the sentence from probation to at least some time behind bars.

Third, Daleiden obviously thinks he can advance the pro-life cause, and is willing to accept the risks.

Finally, the current felony charge requires a showing of "harm," which could drag Planned Parenthood into the proceedings, one objective Daleiden surely has. But prosecutors can reduce the charge to one that does not have that element, effectively insulating Planned Parenthood. That would turn it into a very boring trial about whether or not Daleiden made a fake drivers license, that still would carry up to a 10 year prison sentence under one potential, alternate charge. Prosecutors could go all the way down to a misdemeanor on the drivers license.

Prosecutors have a lot of options. One might think reducing the current (ridiculous) charge with the potential 20-year penalty might be embarrassing, but they can always blame the grand jury. The Bear just doesn't see them going to trial on current charges, especially after putting a worth on the case of court diversion.

On the other hand, his trial team may have a brilliant strategy to both put Planned Parenthood on trial and, if possible, save Daleiden.

Whatever else, the ball is in the prosector's court.


  1. I compliment you on your use of "similarly situated" legal construct. We use it in economic law to ascertain whether price discrimination is undue, ie, based on differences in the situation of the customer. Customers buying different things to meet different needs are not "similarly situated."

    I also thought that had genuine legal analysis been conducted in the various same-sex "marriage" cases, it was a slam dunk of same-sex couples NOT being similarly situated as male-female couples that the state would want to give the relationship legal binding. The state's purpose in marriage is focused on having a mother and father bound to the children they create (in advance of creation ideally!). Male-female legal bonds also help civilize the male and reduce illegitimacy, not just of those children of that couple but of any children a man and woman produce with one or more of the opposite sex. Ie, We see now with unmarried sex and illegitimate births that many men and women today have children with several different sexual partners, with never having married any of them, usually. The social chaos is self-evident. ....

    OK. I went too far off your topic. I am glad that things are going to go ok for the filmers in TX.

    1. Whoops. Price discrimination is UNDUE when it is NOT based on differences...Differently situated customers/people can be treated differently under the law. Sorry about that error. It is important.

    2. It's an equal protection issue in criminal law. If you have six co-defendants and five get probation and one gets 10 years, then the disparate sentencing might be appealable. Waaaay oversimplified.

      The Federal Sentencing Guidelines that the Bear loathed so much were supposed to address that by reducing sentencing to a process similar to figuring out how much income tax you owe, only not nearly as much fun. Then (and this is where you find how much the greatest ursine legal mind in the world has deteriorated) there was a case that struck down mandatory sentencing in, oh, Bear doesn't know, Washington, maybe. Booker / Fanfan! Bear is not senile yet. Biggest thing to hit Federal criminal courts evah.

      But that left the Federal Sentencing Guidelines doomed. So the Supremes punted and said the Guidelines were now "advisory." Yeah, right. Sandra Day O'Connor threw a hissy fit, because the Guidelines were her baby. Even so, the Bear was occasionally able to get a significant "downward departure" (terminology from the old mandatory days everyone used out of habit and because there was really no good way to express the concept under the new regime). It depended a lot on the judge, how much he liked the Bear, etc. But 99% was the judge already had an idea what he was going to do before he took the bench for sentencing.

  2. Wow- he was made the same offer, but turned it down. Says he is planning to fight the charges.

    1. Bravely done. "I will not bend to the marriage."

  3. In fairness I should say I have not kept myself carefully abreast of this matter as it has unfolded, having vowed to abstain from such controversy since the Kentucky clerk refuse to grant marriage licences for homosexual couples.

    Notwithstanding, I wonder if there is wiggle room for the defence of necessity somehow. The courts have pummelled such a defence in repect of abortion protests, etc., but as I gather this was prompted by moral compulsion to investigate criminal activity, i.e. the unlawful sale of body parts, and not abortion per se.

    1. I can give you an analogous case. Illinois has an eavesdropping law. You can't record a conversation without the other party knowing about it. It has not been a defense that the accused were conducting a freelance investigation of criminal misconduct. (There are probably some exceptions like sex abuse case, but not many.)

      Still, creative, Your Honor, and we don't know what his trial team has up their sleeves. Or, maybe it's all about the defendant just not wanting to plead, and there is no master plan. We just don't know.

    2. The defence of necessity relies largely on state of mind. I am unfamiliar with the nuances of Texas law, but even so I believe with a bit of creativity something could be cobbled together most particularly as I suspect the sentiments in Texas might be such that a party recording any criminal activity or conspiracy (illegal border crossings, sale of body parts, 9-gallon hats passing for 10 gallon, etc.) is likely to get a pass if the proper analogies were drawn.

  4. "Daleiden is probably not going to show any remorse, something judges really, really like to see."

    What does that mean? They like it so they can give a heavy penalty or something else? I'm not up on legal stuff.

    1. If a defendant is unwilling to express remorse, his potential for "rehabilitation" is believed to be lower. And yes, judges have discretion in sentencing, and that would be a legitimate factor to consider in devising an appropriate sentence. In fact, in federal court (this case isn't) "acceptance of responsibility" is worth 2 points and another 1 for saving everyone the trouble of a trial (in most of the Bear's cases; it's slightly more complicated than that).

      Bear is not expecting a "heavy penalty," but even regular probation (for instance) would still make him a felon. And if he is making a point, the judge might decide to make his own point.

  5. With all the REAL crime being perpetrated in Houston, if I were a judge, I would be incensed that a prosecutor brought such a case before me, guessing the obvious motives behind it, coupled with the fact that it's a waste of precious resources, time, and effort. Directed verdict.

    1. Unfortunately, that's not the way it works. At least in Illinois, there are mechanisms for lawyers to informally discuss a case with the judge in chambers. The judge can certainly strongly hint of his or her displeasure with a case. But if the prosecutor has the evidence, there can't be a directed verdict. And anyway, that comes after the trial.

      This is not the safe play by the defendant. Whether they've got a winning strategy already or he's just willing to be a martyr to keep the story alive for awhile longer, the Bear does not know. He probably figures -- with a good probability -- he's not looking at prison time. But the thing is, you just don't know. He will never have as much control over the case as he does right now. If I were the lawyer, I would be exerting significant client control to get him to take the plea bargain.


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