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Jun 14, 6:47 PM EDT

Anti-abortion activist's human organ purchase charge dropped


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AP Photo/Bob Levey

HOUSTON (AP) -- A misdemeanor charge accusing an anti-abortion activist of trying to buy human organs while making an undercover video looking into Planned Parenthood practices has been dismissed, and his attorneys said Tuesday they are working to have a felony count the activist faces thrown out as well.

David Daleiden, 27, and fellow activist Sandra Merritt, 63, were each indicted in January on a felony charge of tampering with a governmental record for allegedly using fake driver's licenses to conceal their identities while dealing with Planned Parenthood at a Houston clinic.

Daleiden was also indicted on the misdemeanor count related to purchasing human organs. Video footage from the two activists showed them posing as representatives of a company called BioMax, which purportedly procured fetal tissue for research. Planned Parenthood has said the fake company offered to pay the "astronomical amount" of $1,600 for organs from a fetus. The clinic said it never agreed to the offer.

But Harris County Criminal Court at Law Judge Diane Bull on Monday dismissed the misdemeanor count Daleiden faced, ruling the indictment was flawed because prosecutors had failed to make reference within the indictment to any exceptions to the law prohibiting the purchase or sale of human organs. Under the law, there are several exceptions including if fees were being paid to a doctor or hospital for their services.

Daleiden's attorneys called the dismissal a victory for the anti-abortion movement.

"This is one of two (charges). One down, one to go. Both of these cases are flawed. They've got more holes than two pieces of Swiss cheese," Terry Yates, one of Daleiden's attorneys, said at a news conference.

Daleiden, who is the founder of a group called the Center for Medical Progress, was not at Tuesday's news conference. But in a statement, the center said the dismissal "is the latest confirmation that the indictments from a runaway grand jury in Houston were a politically motivated sham all along."

A court hearing on a motion by Daleiden's attorneys to dismiss the felony count against him is set for July 26. The tampering with a governmental record charge is punishable by up to 20 years in prison.

In a statement, Harris County District Attorney Devon Anderson said her office will not appeal the judge's decision.

"Our office remains focused on the felony charge pending" before a different judge, she said.

Jeff McShan, a spokesman for the Harris County District Attorney's Office, added that prosecutors won't refile the misdemeanor count.

A spokeswoman for Planned Parenthood did not immediately return a phone call or email seeking comment.

Grant Scheiner, a Houston criminal defense attorney not connected to the case, said the misdemeanor count was dismissed on a technicality and prosecutors could easily refile the charge under a different cause number.

He called the decision to not refile the charge "very odd."

"Unless the prosecutor felt there was something wrong with the case, for example if one of the statutory exceptions did apply, then it would be very peculiar for the prosecutor not to refile," Scheiner said.

Daleiden and Merritt, who are both from California, have previously rejected plea deals offering them probation. Both remain free on bond.

Texas authorities initially began a grand jury investigation of Planned Parenthood after the undercover videos were released in August. Daleiden has said he was working undercover as a journalist to expose illegalities related to the handling of fetal tissue

But the grand jury cleared Planned Parenthood of misusing fetal tissue and instead indicted Daleiden and Merritt.

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Follow Juan A. Lozano on Twitter at www.twitter.com/juanlozano70

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