Years after anti-choice activist David Daleiden launched a smear campaign against Planned Parenthood with covertly recorded videos, the anti-choice activist inadvertently indicated during a civil trial on October 31 that he had known his undercover activities were illegal.

The October 31 admission in San Francisco federal court was a blow for the defense, whose case hinges on proving Daleiden and his co-defendants believed that by going undercover, they would find evidence of Planned Parenthood officials committing suspected felonies and would therefore be exempt from legal liability in California.

Daleiden and co-defendant Sandra Merritt went to abortion-care conferences in California in 2014 and 2015 posing as employees of a fake fetal tissue procurement company and secretly taped conversations with Planned Parenthood abortion providers. Daleiden later released deceptively edited propaganda videos through his anti-choice front group, the Center for Medical Progress (CMP), which is also a defendant in the case. The videos falsely accused Planned Parenthood of trafficking fetal tissue. The videos resulted in some of Planned Parenthood staff being placed under around-the-clock armed security after receiving death threats.

Republican lawmakers on the state and federal level used the deceptively edited videos as pretext to attack funding for Planned Parenthood, launching investigations across the country that eventually showed no wrongdoing on the part of the reproductive health-care organization.

To dodge legal liability for secret recordings, a defendant must prove they had, according to California law, a “reasonable [belief]” before the first recording was made that people being recorded had committed or intended to commit violent felonies. The defendants say their “research” led them to suspect Planned Parenthood of infanticide and medical battery against patients seeking abortion care in order to obtain and sell fetal tissue to researchers. Those claims have been debunked.

Daleiden testified last month that he first became suspicious about Planned Parenthood in summer 2010, when he came across “whistleblower” claims made by Dean Alberty in 2000 in congressional testimony and in a concurrent interview on ABC’s 20/20. Alberty was a fetal tissue procurement technician who had been employed by two biomedical firms.

According to Daleiden’s testimony, Alberty claimed to have seen late-term fetuses delivered alive and killed for their organs at the Planned Parenthood facility where he worked. Alberty had also claimed he saw Planned Parenthood doctors illegally alter abortion procedures to obtain more valuable organs to sell to biomedical companies, including his own. Alberty later recanted these accusations.

In the television segment, played in court October 22, Alberty admits to accepting $10,000 to be an informant for an anti-choice group while still employed as a procurement technician. “I will stand by my words until the day I die,” Alberty told then-ABC correspondent Chris Wallace as to why viewers should believe him.

Alberty was rebuked by a Republican congressman in March 2000 during a U.S. House of Representatives committee hearing on the allegations. 

On the stand, Daleiden said his extensive research in 2010 had unearthed no answer as to what had become of Alberty’s claims. “It looked like there had been zero follow-up whatsoever,” Daleiden said. “It looked like it needed an even bigger exposé.”

“That information affected me very, very strongly, and I was very convinced that the issue of fetal trafficking needed to be followed up on,” Daleiden said.

But it was not until October 31, after a weeklong trial break, that jurors learned Alberty’s claims had been debunked, and that Daleiden had known this in 2010.

Under questioning by Planned Parenthood attorney Rhonda Trotter, Daleiden said he knew Alberty had signed a sworn affidavit recanting the claims. He qualified his admission by testifying that Alberty had been “induced” into recanting his statements. He did not say why he believed this.

Presiding U.S. District Judge William Orrick III declined Planned Parenthood’s request to admit into evidence news articles between 2000 and 2002 reporting that the U.S. Department of Justice (DOJ) had decided not to prosecute Alberty’s former boss over his claims. Planned Parenthood had sought to use the articles to rebut Daleiden’s testimony that he had conducted extensive research into the veracity of Alberty’s claims before launching his  so-called undercover investigation.

Orrick declined the request on the basis that Daleiden hadn’t seen the articles because they had been pulled from a legal subscription service he had no access to during his research. Daleiden said he had conducted his research using public tools like Google.

But Orrick’s decision was not a setback for Planned Parenthood. Earlier in his cross-examination, Daleiden acknowledged he had known in 2010 about the DOJ’s decision based on the congressional transcript.

“You knew from the congressional transcript that this matter was referred to the FBI and the Department of Justice” Trotter said.

“I do remember a referral,” Daleiden replied.

“And that DOJ publicly stated that they looked into the matter back in 2000,” Trotter said.

“To my knowledge, there had been no follow-up … for ten years,” Daleiden replied.

‘Your Ongoing Testimony … Was False’ 

Daleiden’s admission capped a disastrous round of testimony for the defense. On October 4, co-defendant Sandra Merritt seemingly was caught lying on the stand. Merritt testified that security had not stopped her as she walked through the abortion-provider conference, filming undercover, and up to her hotel room without her name badge. She said another undercover anti-choice activist had picked up Merritt’s badge from a nearby table and given it to her, and Merritt had put it in her purse.

Merritt’s testimony appeared to corroborate footage of her walk through the conference recorded by her hidden camera and helped establish a key defense argument: that the defendants aren’t liable for the covert recordings because the abortion care conferences they infiltrated were held in public places.

Merritt’s attorney Horatio Mihet, of the conservative group Liberty Counsel, played the footage in court. But after Planned Parenthood noted a discrepancy between the footage and the testimony, Orrick allowed Planned Parenthood’s attorneys to recall Merritt to the stand the following week.

During that second day of testimony, Planned Parenthood attorney Sharon Mayo played a longer version of Mihet’s clip. It showed Merritt had been wearing her name badge throughout her time at the conference.

After watching the footage, Merritt admitted the badge in her purse had actually belonged to the other activist, who had given it to her because she was leaving. Merritt explained she had no “independent recollection” of the event and had testified it was her badge based on the footage Mihet had played.

“All you had to do, you and your lawyer, was look at the 15 previous seconds to see that was not true,” Mayo said.

“Your ongoing testimony about your badge being in your purse was false,” Mayo said, adding, “no one stopped you, Mrs. Merritt, because you were wearing your own lanyard.”

While the defendants claim they went undercover to expose violent crime, Planned Parenthood says they intended to smear and shut down the reproductive health-care provider, long a target of anti-choice lawmakers and activists. CMP records penned by Daleiden and read aloud in court indicate Daleiden hoped to “ignite public outrage at Planned Parenthood” and “permanently destroy” its reputation.

Abortion providers appearing in the smear videos became the target of death threats. Planned Parenthood says the release of the videos coincided with an increase in violence at its clinics, culminating in a November 2015 shooting at its Colorado Springs facility, where three people were killed. The gunman repeated talking points from those videos.

The head of a Northern California fetal tissue procurement company who appeared in one of the videos received death threats. She has been identified only as Doe 12 in concurrent California criminal proceedings against Daleiden and Merritt, and Rewire.News is withholding her name for safety reasons.

In 2016, Doe 12 told a federal court that her security guards had caught cars surveilling her house and photographers in the trees around it. Three years later, the harassment against Doe 12 allegedly continues. During a September preliminary hearing in San Francisco Superior Court, Doe 12 claimed she was targeted in retaliation for her testimony in a road rage incident.

A decision as to whether that case will advance to a jury trial is expected later this month. Daleiden and Merritt face felony invasion of privacy charges over the recordings and face prison time.