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.
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