Makers of the controversial video made to shame Planned Parenthood by pretending to be researchers trying to purchase fetal tissue from the organization, David Daleiden and Sandra Merritt (working under the aegis of the "Center for Medical Progress"), were indicted today in Harris County, Texas, by a grand jury on felony charges of "tampering with a governmental record."
The grand jury was, ironically, convened to investigate whether the videos reveals that Planned Parenthood had broken any laws.
Since the story broke this afternoon I saw coverage cheering the indictment largely because they were sympathetic to Planned Parenthood and thought the video makers had done a bad thing, or booing it because they were unsympathetic to Planned Parenthood and thought the video makers had done a good thing.
But for hours no explanation of what specific act they had actually committed qualified under the quoted indictment language of "tampering with a governmental record" seemed forthcoming, or at least none that I had seen.
Now The New York Times has updated with a possible explanation:
In making the videos, Mr. Daleiden and others have been accused of setting up a fake company called Biomax Procurement Services, creating fake identities and claiming to be part of a legitimate provider of fetal tissue to researchers.
"We know that they used fake IDs that had their real photographs but fake names and fake addresses purported to be issued by the State of California," said Josh Schaffer, a Houston lawyer who represents Planned Parenthood Gulf Coast in the Harris County criminal investigation. Mr. Daleiden and Ms. Merritt presented those IDs to security at the Planned Planned office to gain entry to the building. "They never denied that they presented a fake ID," Mr. Schaffer said…..
"It does not surprise me that a grand jury that chose to correctly apply the law to the evidence that was presented would return this result," he said. "The written charges have not been released publicly yet, so at this point I am working on my knowledge of the investigation."
What seems to be the relevant Texas criminal code, only one I found with that language:
Sec. 37.10. TAMPERING WITH GOVERNMENTAL RECORD. (a) A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of, a governmental record;
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with
intent that it be taken as a genuine governmental record;
(3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability
of a governmental record;
(4) possesses, sells, or offers to sell a governmental record or a blank governmental record form
with intent that it be used unlawfully;
(5) makes, presents, or uses a governmental record with knowledge of its falsity; or
(6) possesses, sells, or offers to sell a governmental record or a blank governmental record form with
knowledge that it was obtained unlawfully…..
(c)(1) Except as provided by Subdivisions (2), (3), and (4) and by Subsection (d), an offense under
this section is a Class A misdemeanor unless the actor's intent is to defraud or harm another, in
which event the offense is a state jail felony.
The reporting all states that their charge is a felony one. According to this site, a "state jail felony" is:
punishable by 180 days to two years in state jail and a fine of up to $10,000.
See Update below
[UPDATE: Via a portion of the indictment now public via Volokh Conspiracy, my guess as to the charged crime was correct; specifically the language in the indictment is 37.10 (a) (5). That said, others are reporting potential sentences that far exceed what the language in the linked version of Texas statute seems to state, which again from my read seems to be a "state jail felony" with a max 2 years, not the 20 that some are reporting for reasons unclear to me. The Harris County D.A.'s office has not returned a call seeking clarification on potential sentencing.
UPDATE II: While the D.A. has still not returned my call, a more careful read on my part reveals I was wrong and others were right: there is indeed later in the statute, the "except as provided by Subdivisions (2)" part I quoted above but did not follow carefully enough (don't hire me as your defense attorney, people), the explanation as to why their use of a faked California I.D. is in fact not just a "state jail felony" but in fact a "second degree felony" for which two years is the minimum and 20 the maximum. The relevant subsection:
(2) An offense under this section is a felony of the third degree if it is shown on the trial of the offense that
the governmental record was: (A) a public school record, report, or assessment instrument required
under Chapter 39, Education Code, data reported for a school district or open-enrollment charter
school to the Texas Education Agency through the Public Education Information Management
System (PEIMS) described by Section 42.006, Education Code, under a law or rule requiring that
reporting, or a license, certificate, permit, seal, title, letter of patent, or similar document issued
by government, by another state, or by the United States, unless the actor's intent is to defraud
or harm another, in which event the offense is a felony of the second degree;
The original headline has also been amended to reflect the proper sentence.
Back to original post:
Daleiden also was hit with a misdemeanor charge related to attempting to buy human tissue.
It's possible people might rise above their culture-war sympathies about this and wonder whether having and using a fake I.D. in and of itself should be punished as a felony. Or, maybe not and those who want to see those guys punished will grab whatever stick they can toward that goal. (Or maybe people genuinely believe the making of a fake I.D. deserves six months to 2 years 20 years locked in a cage.)