CA Prosecutor Ignorant of Recording Law

Sep 13, 2019

SAN FRANCISCO, CA – The two-week preliminary criminal hearing continued yesterday in the San Francisco Superior Court with testimony from the lead investigating agent from the California Department of Justice, as Sandra Merritt defends against 15 felony charges brought against her by California Attorney General Xavier Becerra. Liberty Counsel is defending Merritt for her undercover journalism work which exposed Planned Parenthood’s trade in baby body parts.

Merritt and David Daleiden from the Center for Medical Progress (CMP) are charged with felony charges under Penal Code section 632 of “intentionally and without consent of all parties” recording “confidential” communications, and another count of conspiracy to violate section 632, in connection with undercover videos they released in 2015. However, the law states conversations are not confidential when there is a reasonable expectation they will be overheard, and undercover taping is allowed when those doing so have a reasonable belief that they are collecting evidence relating to a violent crime.

Special Agent Cardwell, lead investigator for the Attorney General’s case, testified on behalf of the 14 “Doe victims.” California Proposition 115 allows the state to present evidence for the “victims” through hearsay testimony of an investigator. During cross-examination Special Agent Cardwell stated this was his first investigation of illegal recording under section 632 and though he had received no training for this type of investigation, he stated he knows the definition of “confidential communication” under section 632.

During cross-examination, it was revealed that Cardwell left out multiple exculpatory information from the arrest warrant affidavit. One “Doe” video was filmed during an elevator ride, during which a stranger was present the entire time. Cardwell did not mention this to the judge in his arrest warrant affidavit. He included in the affidavit a complaint filed by a “Doe” to the Los Angeles Police Department (LAPD), but failed to mention that the complaint was dismissed because the meeting occurred in a public place and therefore there was no basis for pursuing the case.

Cardwell stated he asked one “Doe victim” if her recorded conversation could be heard by others, and she said yes. In preceding “Doe” interviews, Cardwell admitted that though other “Does” said they “felt” the recorded conversations were “confidential,” he did nothing to investigate these claims. He did not ask the “victims” what they meant when they claimed their conversations were “confidential,” and he made no effort to determine whether their claim of “confidentiality” is consistent with section 632’s definition. He simply accepted the Doe’s statements as fact and presented them in his affidavit for the arrest warrant.

Upon this admission, Deputy Attorney General Johnette Jauron, the lead prosecutor in the case, objected, saying “Section 632 does not define a ‘confidential communication.’” There was an audible reaction in the courtroom as section 632 clearly defines “confidential communication” and even Cardwell started his testimony by admitting he knew the definition.

Liberty Counsel’s Vice President of Legal Affairs and Chief Litigation Counsel Horatio Mihet said, “For a Deputy Attorney General representing California’s top law enforcement officer not to know the most critical aspect of the recording law she is seeking to enforce is mind boggling. But then again, this case has never been about the law, and Attorney General Xavier Becerra is committed to not let the law get in the way of his bought-and-paid-for political prosecution of Sandra Merritt. This case is frivolous, and should be dismissed immediately,” said Mihet.

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