Criminal Jury Trial in Merritt Case Likely in 2023

Sep 26, 2022

SAN FRANCISCO, CA – Judge Christopher Hite of the Superior Court of San Francisco County held a status conference today regarding Liberty Counsel’s request for an evidentiary hearing to further review the bias nature of former Attorney General Xavier Becerra’s felony charges brought against Sandra Merritt. Liberty Counsel represents Merritt, who along with David Daleiden, founder and president of The Center for Medical Progress, are facing criminal charges for their undercover journalism exposing Planned Parenthood’s trafficking in baby body parts. 

Judge Hite set another status conference for November 3, when he will schedule a date for the jury trial. 

The undercover videos, some of which were recorded at the National Abortion Federation’s (NAF) 2014 and 2015 abortion convention and trade shows, exposed Planned Parenthood’s illegal involvement in harvesting and selling aborted baby body parts to companies such as StemExpress. The recordings capture Planned Parenthood executives haggling over the prices of baby body parts, picking through bloodied arms and legs of aborted babies in a pie tray, and discussing how to alter abortion methods to obtain better body parts for sale.

To date, no other citizen journalist or journalism organization has ever been charged with a crime for undercover recordings made in the public interest. In fact, Merritt and Daleiden are the first undercover journalists to be criminally prosecuted in California’s history.

Merritt and Daleiden are being prosecuted under California Penal Code section 632, subdivision (a) regarding the recording of confidential communication—a charge that is unprecedented for citizen journalists. The attorney general of California seeks to prosecute without having to prove specific intent. However, the California Supreme Court previously held in People v. Superior Court of Los Angeles County (1969) that specific intent is an essential element of the crime of recording a confidential communication. And in the case of alleged specific intent crimes, defendants have a right to raise a defense of mistake of law. Thus, the pretrial ruling that bars testimonial evidence of Merritt and Daleiden’s specific intent prejudices them at trial by depriving them of a large part of their defense.

Despite threats from the attorney general’s office during the preliminary criminal hearing in San Francisco Superior Court, a stem cell expert testified that hearts from live aborted babies procured from abortion providers are being used for research studies.

Dr. Theresa Deisher, an expert in adult stem cell research who obtained her Ph.D. in Molecular and Cellular Physiology from Stanford University School of Medicine, testified about the perfusion technique using the Langendorff method that is meant to be used on animal hearts. Deisher said she must go to great lengths as a cardiovascular researcher to make sure that the mice she studies do not suffer needless pain. In fact, she noted, she would face ethical charges and go to jail if she cut beating hearts out of mice without anesthesia. 

Deisher also testified how horrified she was upon reading various studies involving baby human hearts procured from StemExpress, which the evidence at the hearing showed were sourced from Planned Parenthood. She knew those studies had to be conducted while the hearts were still beating when cut out, without anesthesia, from the aborted babies. She consulted with Daleiden before he and Merritt filmed the undercover videos and told them that the research methods discussed in these studies would have required fetal hearts. 

During the civil trial, Dr. Mary Gatter, former “medical director” of Planned Parenthood Los Angeles (PPLA), and Jon Dunn, CEO of Planned Parenthood Orange & San Bernardino Counties, were former business partners of the DaVinci companies that were shut down for illegally selling fetal organs and tissues from Planned Parenthood. Dr. Gatter described PPLA’s fetal tissue program with Novogenix Laboratories, acknowledging PPLA was “used to getting a set fee for each specimen” harvested. On cross examination, Gatter admitted that PPLA never complied with PPFA’s (Planned Parenthood Federation of America) national guidelines that affiliates engage an independent auditor to make sure fetal tissue payments were merely reimbursements and not illegal profit or valuable consideration. 

Gatter admitted that undercover videos of her negotiating prices that Planned Parenthood would charge for baby body parts took place at a cocktail reception at an outdoor hotel pool, another reception in a hotel mezzanine, and at a restaurant, among other places of public accommodation.  Gatter also admitted cocktail lounges, restaurants, and elevators are all public places, as recognized by PPFA-issued conference security guidelines. Despite the judge banning the evidence in court, one of the videos shows Gatter stating “I want a Lamborghini” as she negotiates prices for human livers, thymus, brains, hearts, lungs and other baby body parts during her conversation with Sandra Merritt at a public restaurant in Pasadena. She also stated that a “less crunchy technique” is used in the abortion process to get better human organs. 

In addition, Dr. Deborah Nucatola testified under oath that when a video, in which she describes criminal partial-birth abortion procedures in order to sell baby body parts, was released in 2015, she “felt the content was no big deal” and that she didn’t think she said anything inappropriate on the video.  In the video of her conversation at a public restaurant in Los Angeles, Nucatola described using ultrasound guidance to flip a baby in the womb to feet-first breech position, in order to extract the baby intact and harvest whole, fresh organs. 

Nucatola said, “So then you’re just kind of cognizant of where you put your graspers, you try to intentionally go above and below the thorax, so that, you know, we’ve been very good at getting heart, lung, liver, because we know that, so I’m not gonna crush that part, I’m going to basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact. And with the calvarium, in general, some people will actually try to change the presentation so that it’s not vertex, because when it’s vertex presentation, you never have enough dilation at the beginning of the case, unless you have real, huge amount of dilation to deliver an intact calvarium. So if you do it starting from the breech presentation, there’s dilation that happens as the case goes on, and often, the last, you can evacuate an intact calvarium at the end…And, we’ve been pretty successful with that. I’d say.” 

The jury was visibly moved by the video in which Nucatola sipped wine while eating a salad and casually talked openly for third parties to hear how she positions the baby in the womb and then crushes above and below the thorax to harvest intact hearts, lungs, and livers. Nucatola has performed tens of thousands of abortions, including up to 200 in one week. 

Judge Christopher Hite previously dismissed all but eight of the original 15 felony charges as he made factual findings that the recorded conversations were not confidential. Given those factual findings, former Attorney General Becerra cannot bring those dismissed charges again. Becerra then filed an “Information” on December 13, 2019, adding an additional count to Merritt’s charges, even though the statute of limitations had long ago expired for any new claims. 

Liberty Counsel’s Founder and Chairman Mat Staver said, “The evidence will demonstrate that California’s first-ever prosecution of an undercover journalist is selective and discriminatory, and Sandra will be vindicated. The efforts to suppress the truth about abortion instigated by Kamala Harris and Xavier Becerra will not stand.” 

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