The first and last sentences of a Texas Criminal Court’s ruling from earlier this week state: “Defendant David Robert Daleiden’s motion to quash the indictment is pending before this Court … Cause No. 2071353 is ORDERED DISMISSED for want of jurisdiction.” Those sentences reveal what we at Freedom of Conscience Defense Fund (FCDF) have been saying ever since we first started defending David Daleiden and the Center for Medical Progress back in July 2015, when his Human Capital Project videos first came out. All of the legal cases brought against him are nothing more than the result of Planned Parenthood’s throwing of taxpayer money at lawyers, in the desperate hope that those lawyers can confuse the issues—with the help of a liberal media and compliant judiciary.
Will the members of the judiciary obey the rule of law? It seems that in the past five years, that question has been on the mind of many Americans more and more, and especially conservative attorneys working in the non-profit arena. As Justice Scalia famously put it, the judiciary has reached the point where many judges think that they can simply ignore the rule of law with impunity:
Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension … one can even imagine … of the Court’s claimed power…. This practice … robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
Orthodox. Faithful. Free.
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Justice Scalia’s portent is one that we’ve been thinking about as the David Daleiden cases make their way through the courts. As civil litigators, we have always known that the cases—both civil and criminal—against David Daleiden were simply absurd. We have also known that if the courts obey the rule of law, then after the various lawsuits run their expensive course, left standing will be David Daleiden, the Center for Medical Progress, and the proof that Planned Parenthood has been engaged in an illegal nationwide enterprise of selling aborted baby body parts for profit.
For example, at a recent hearing held by Congress’s Select Investigative Panel on Infant Lives, the former United States Attorney for the Northern District of Florida testified that he was simply flabbergasted that, based on the evidence that David Daleiden had uncovered, that there was not already a criminal investigation of Planned Parenthood. So when David Daleiden, through his Texas criminal defense attorneys, filed motions to quash the indictments brought against him for allegedly using a fake ID and offering to purchase baby body parts, we had good reason to believe that they would be successful. Still, too often, these cases are decided on ideological rather than legal grounds.
But Monday, the Court handling the purchase of fetal tissue charge dismissed the case against David Daleiden. The Court, while reviewing the motion, realized that the indictment for the purchase of fetal tissue was so fatally flawed that the Court did not even have jurisdiction to address the arguments in the motion, and had to dismiss the indictment outright. The lack of jurisdiction was based on the failure of the grand jury and the Texas District Attorney to properly charge David Daleiden with the crime of purchasing fetal tissue. In other words, this is a case of bad lawyering and failing to follow the procedural rules even in prosecuting these trumped up charges.
At the press conference held Monday about the order granting the motion to quash, one of the reporters repeatedly insisted that it seemed to him that David Daleiden had got off on a “technicality.” Once again, as lawyers, this comment struck us a little odd because so much of what we do deals with “technicalities.” But the term “technicality” in this instance is a little misleading. The law requires that officers of the law follow certain procedures, not for the sake of confusing non-lawyers, but because doing so is necessary to ensure that justice is done.
The hearing on the motion to quash before the Court handling the alleged fake ID charge, is still set for July. The problem with that indictment is that an assistant district attorney, instead of investigating Planned Parenthood as he was ordered to do, colluded with the attorneys for Planned Parenthood; decided to trick David Daleiden into coming to Texas and turn over documents under the pretense that he would be a witness against Planned Parenthood; did not call a single witness from Planned Parenthood to testify before his assembled grand jury; never had that grand jury vote on whether to indict Planned Parenthood; and then rushed to publish the contrived indictment against David Daleiden and hold a press conference before even telling him about it.
For the hard-nosed abortion activist, these might all seem to be just more “technical” violations of the law; but frankly, lawyers should know how to follow the law. We’d much prefer for the indictment to be quashed based on the law, rather than on a disregard for the law. The vindication of David Daleiden and his important work is not all that is at stake in this case. Also at stake is the vindication of the judicial system itself, and the rights of all Americans, from coast to coast, who still value “the freedom to govern themselves.”
Editor’s note: Pictured above is David Daleiden speaking at a press conference outside the Harris County Criminal Courthouse in Houston, February 4. (Photo credit: AP / Bob Levey)