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Sandra MerrittJim Hale / LifeSiteNews

SAN FRANCISCO, California, October 8, 2019 (LifeSiteNews) – In her first-ever public testimony, Sandra Merritt told a San Francisco jury Friday why she took part in an undercover operation that exposed Planned Parenthood’s trafficking in aborted baby body parts.

Testifying in the Planned Parenthood Federation civil suit against the Center for Medical Progress (CMP), the 66-year-old grandmother said she believed Planned Parenthood was committing such crimes as partial-birth abortion, battery against women by changing abortion procedures in order to procure more intact organs, and harvesting organs from babies born alive during abortions.

“I thought it was horrific. I thought it needed to come to the light and for people to know the truth in order to make an informed choice,” she told the court.

An investigator with CMP, Merritt is one of five defendants Planned Parenthood Federation of America and 10 affiliates are suing for damages they claim resulted from the undercover videos CMP released in 2015.

The Planned Parenthood suit accuses Merritt, CMP project lead David Daleiden, Albin Rhomberg, Troy Newman, and Gerardo Adrian Lopez – as well as CMP and its alter-ego BioMax – of committing 15 different crimes including wiretapping, conspiracy, trespassing, breach of contract, and violating the Racketeering Influenced and Corrupt Organizations Act (RICO) statute.

Rhomberg and Newman, president of Operation Rescue, were CMP founding board members along with Daleiden, and Lopez was an undercover investigator in the 30-month long covert operation.

In an ongoing criminal prosecution, Merritt and Daleiden are also charged with 14 felony counts of illegal taping of confidential information in violation of California’s anti-eavesdropping law.

The civil defense team is arguing that their clients violated no laws while carrying out the undercover investigation. Additionally, they argue that the recording done in the state of California fell under a provision of California law that allows for recording without consent specifically for the purpose of uncovering evidence of violent crimes against a person. 

They argue their clients had reason to believe that Planned Parenthood and organ harvesting companies such as Advanced Bioscience Resources (ABR) and StemExpress were committing such crimes.

Baby body parts harvesting not relevant: judge

However, the defense is severely impeded by U.S. District Court Judge William Orrick’s pre-trial order that abortion and fetal tissue procurement are not relevant to the trial. He is excluding testimony concerning whom Daleiden consulted as he began the undercover project, as well as evidence uncovered in government investigations spurred by the release of the CMP videos.

The groundbreaking videos, which show high-level Planned Parenthood executives haggling over the price of body parts and admitting they change the abortion procedure to harvest intact organs, outraged the public and sparked both U.S. House and Senate investigations, leading the two government bodies to refer criminal charges to the FBI and Department of Justice. An update on those investigations is expected soon. 

Orrick, who has known ties to Planned Parenthood, told the jury in his opening statements that the case “is not about the truth of whether plaintiffs profited from the sale of fetal tissue or otherwise violated the law in securing tissue for those programs.”

“Those issues are a matter of dispute between the parties in the world outside this courtroom,” he said.

Pretext necessary to gather evidence of violent crimes

Merritt was able to testify that she and CMP investigators believed Planned Parenthood and organ harvesting companies were committing violent felonies.

On cross examination by her lawyer Horatio Mihet, Merritt said she had known of Planned Parenthood and its “eugenicist founder Margaret Sanger” for decades, and had taken a small part in a Live Action project that revealed Planned Parenthood did not offer mammograms as it claimed.

Daleiden, who also previously worked for Live Action, approached Merritt in 2013 with information about the organ harvesting industry, including a 2000 20/20 undercover exposé showing illegal fetal organ harvesting and profit in the abortion industry, Merritt told the court.

He also showed her the 2012 Stanford study that used fetal human hearts supplied by StemExpress in a Langendorff perfusion technique. Dr. Theresa Deisher, among others, told Daleiden the hearts had to be harvested from living babies, which Merritt described as “horrific.”

“Having two daughters and caring about how young women were being treated, used, abused, lied to, and criminal activity was – seemed apparent by the information that he was giving to me, there was nothing else that I could do” but take part in the operation, the jury heard.

Planned Parenthood lawyer Sharon Mayo repeatedly asked Merritt if using false ID to pass herself off as Susan Tennenbaum, CEO of BioMax, was lying, misrepresentation, and making false statements.

Merritt consistently responded the pretext was needed to investigate what they suspected was criminal activity.

Mayo asked Merritt if she told attendees at the National Abortion Federation she was recording them, to which Merritt replied, “We did not tell people that we suspected of doing criminal activities that we were recording them, that is correct.”  

That prompted a rebuke from Orrick, who told the clerk to strike “the descriptive characterization” from the record, and Merritt to “just go straight to the question.”

‘We’re not going into the truth of abortion procedures’

Orrick’s pretrial ruling restricting evidence led to some highly-charged moments. 

When Mihet asked Merritt what she knew about Holly O’Donnell, a former fetal tissue procurement technician with StemExpress who is now deceased, Orrick ordered the jury to leave.

Witnesses can “testify as to what their reasonable state of mind was with respect to the specific defense” and “about their explanation that they are journalists,” he then told counsel. 

“But we’re not going into the truth of abortion procedures. I’ve excluded that. We’re not going into the many disputes that the parties have outside of this.” 

As is seen on CMP videos and revealed in testimony in the criminal case, O’Donnell told Daleiden that while waiting to procure baby organs at a Planned Parenthood Mar Monte abortion center, her supervisor touched the heart of an aborted baby with an instrument and the heart began beating. 

She also told Daleiden she had to harvest the brain of a baby aborted at 25 weeks gestation by cutting through the baby’s face.

Ruling ‘sanitizes case’ and denies pro-lifers fair trial: lawyer

Orrick’s pretrial ruling specified Daleiden could testify that he had conversations with O’Donnell that supported his “reasonable belief arguments,” but disallowed testimony about O’Donnell’s opinions because the plaintiffs “had no opportunity to cross-examine her and her purported beliefs are hotly disputed and highly prejudicial.”

Charles LiMandri, lawyer for Daleiden, argued to no avail that Orrick’s excluding this type of evidence would be “sanitizing the case to the point where the defendants would be, with due respect to the Court, completely deprived of a fair trial.”

O’Donnell’s revelations, as well as Dr. Deisher’s testimony that hearts used on a Langendorff apparatus had to be harvested from living babies, were allowed in the criminal trial, Limandri said.

“[The] fact that there are – fetal hearts had to be beating, that’s a large part of [Daleiden’s] reasonable belief that babies are born alive. So I never understood your precluding us from getting into that,” said LiMandri, lead counsel for the Freedom of Conscience Defense Fund.

The jury “has to know the source and they have to know the basis” of Daleiden and his team’s beliefs, he argued.

Judge nixes video of abortionist as ‘prejudicial’

There were also contentious discussions before the jurors entered the courtroom over the defense’s request to play raw video footage Daleiden and Merritt secretly recorded at a lunch with Dr. Deborah Nucatola, then PPFA medical director. 

The first video CMP released shows Nucatola describing how she would “crush below” and “crush” above the baby’s thorax in an abortion to leave organs intact and admitting she would the change baby’s position to breech, a description of partial-birth abortion, in order to harvest the baby’s head intact.

Jenna Tosh, CEO of Planned Parenthood California Central Coast, testified Thursday and Friday morning that when the video was released, she felt frightened for the safety of Planned Parenthood staff.

Before she took the stand, the defense argued that Tosh should be prohibited from talking about her alleged fears and concerns about the public’s reactions to the video. Orrick denied the motion. 

After Tosh testified, Paul Jonna, who is representing Lopez, argued that the video should be shown to the jury to demonstrate it contains no call for violence or criminal behavior. He said to exclude it was unfair to the defense. Orrick was unmoved.

“This clip is going into evidence that I have excluded in pretrial and it is – it’s prejudicial, it’s time wasting, and I’m not going to allow it,” Orrick said.

Mihet then argued the video clip would show the jury that Nucatola made no effort to change the subject or lower her voice, as wait staff came and went, and that there were people in the restaurant nearby who could overhear the conversation, and that “for context, you have to show the conversations.”

Orrick said he would rule Tuesday whether the defendants could show the video. 

Judge allows testimony of alleged violence of pro-lifers

In its initial complaint, Planned Parenthood made sweeping claims about the high quality of its services. After the discovery phase of the case, when the defendants asked for all the medical malpractice suits against Planned Parenthood, every discipline action against one of its doctors, and all deficiency reports, Planned Parenthood agreed not to talk about the quality of its services. 

However, Planned Parenthood appears to be getting around this by having the witnesses talk about it, sandwiched in with their other testimony.

Plaintiff lawyer Amy Bomse spent a great deal of time Thursday asking Tosh about all the beneficial things Planned Parenthood does.

Planned Parenthood continues to make claims of “a history of violence” in the pro-life movement. Their allegations of a spike in “harassment, threats, and violence” after the release of the CMP videos were shown to be baseless during the discovery phase. 

But Orrick allowed questioning on the alleged violence of the pro-life movement as part of Tosh’s “state of mind,” even though it had no basis in fact. 

On cross-examination by Catherine Short, lawyer for Rhomberg, Tosh admitted that Planned Parenthood’s count of “security incidents,” includes tweets, letters, and phone calls critical of Planned Parenthood, as well as incidents unconnected with opposition to abortion. 

Tosh also admitted that the media often attribute violence against Planned Parenthood to pro-lifers, even contrary to the evidence. For example, an arson attributed to pro-lifers was later proven to be perpetrated by an estranged boyfriend of a Planned Parenthood employee.

Another difficulty for the defense is that Planned Parenthood includes or discards claims as it benefits them. The plaintiffs originally claimed the defendants were liable for Planned Parenthood’s loses after it took down its website after learning of a possible hack. When pressed for evidence, they dropped the claim, resurrected it when the discovery phase was over, then dropped it again.

The trial, which will run until at least November 8, resumed Tuesday with defendants Lopez and Rhomberg scheduled to testify.