Friday, January 29, 2016

Houston Grand Jury Indictment: When Consequentialism Backfires

David R. Daleiden. (Source: Urban Christian News.)
People who have never read Vom Krieg often know Carl Philipp Gottfried von Clausewitz's most famous dictum, "War is the continuation of politics by other means." The indictment of David R. Daleiden and Sandra S. Merritt on charges of tampering with a government record "with intent to defraud" — a penalty that carries with it a 20-year maximum sentence — and a misdemeanor attempt to purchase human organs is further proof, if we needed it, that in America jurisprudence is another means.

Daleiden and Merritt are central figures in the Center for Medical Progress' "sting videos", in which mid-level Planned Parenthood employees discuss the compensated harvesting and sale of fetal organ tissue for medical research. Until now, the abortion provider has traded on the fact that the pro-abortion rank and file, not to mention the American "mushy middle" that's against abortion "for myself", is unwilling to watch any of the full-length video clips, allowing PP and the militant pro-aborts to claim that the shorter "good parts" clips are deliberate misrepresentations.

According to California lawyer Donald R. McClarey, Texas Lt. Gov. Dan Patrick (R) urged Harris County prosecutor Devon Anderson (R) to prosecute Planned Parenthood based on one of CMP's clips (probably either this one or this one). [Full disclosure: while Donald and I are barely acquainted with each other, he's a fellow Catholic Stand writer.] During her 2014 campaign, Anderson sold herself to the Texas GOP as a "proud pro-life mother of two". On the surface, then, it appeared that CMP and the pro-life movement had some chance for success.

But this isn't the first case against an abortion provider that Anderson's office has fumbled.

Anderson was barely three months into office when the anti-abortion group Operation Rescue accused a Houston doctor of performing late-term abortions. The activist behind those allegations, Troy Newman, was also a founding member of the Center for Medical Progress ....
Operation Rescue had released disturbing photos and accusations from the former staff of Dr. Douglas Karpen. A grand jury declined to indict Karpen; the abortion provider’s lawyer, Chip Lewis, said Karpen was smeared by doctored pictures and false allegations made by individuals who were paid by Operation Rescue. ...
Kansas-based Operation Rescue has denied paying informants and had questioned the evidence seen by the grand jury. Anderson’s handling of both cases is also questioned by Texas Right to Life, a prominent anti-abortion group that endorsed the district attorney in 2014. ...
Lewis said the assistant prosecutor who oversaw the Karpen investigation also handled the Planned Parenthood case. “I don’t think she forgot what she uncovered,” Lewis said. A spokesman for Anderson, Jeff McShan, said he could not confirm whether the same assistant prosecutor handled both investigations.

Because it bears repeating.
As it turns out, one of Anderson's subordinates in the criminal family law division, Lauren Reeder, is on the board of Planned Parenthood Gulf Coast. Anderson told the Houston Chronicle that Reeder "will not be involved in any manner in this investigation", and would consider appointing an independent prosecutor if her board membership compromised the integrity of the investigation. However, from my (admittedly inexperienced) position, it's hard to see how Reeder's mere presence in the DA's office could have corrupted the investigation; do the relevant statutes fall under the "criminal family law" category?

As McClarey notes in another American Catholic article, grand juries rarely indict the accusers instead of the accused. Theoretically, grand juries exist to pass judgment on whether there's sufficient evidence to prosecute; in practice, they're little more than rubber stamps authorizing politically ambitious DAs to prosecute high-profile cases, even when evidence is thin to nonexistent. If the case is thrown out, the DA can always complain about "bleeding-heart activist judges" to score points with the conservative voter base. Moreover, because grand juries operate behind a wall of secrecy, prosecutors aren't accountable to the public for what they say and do behind the closed doors; they're free to manipulate the outcome according to their political and social biases.

So a couple of years ago, Anderson's office investigated possible law-breaking by a Houston abortion provider — and Operation Rescue came out with their reputation smeared. Now Anderson 's office investigates Planned Parenthood — and two key witnesses are indicted on charges that McClarey says "a first year law student should be able to get ... dismissed."

Having looked over the charges this afternoon, I can say confidently that this is clearly a result intended by the prosecutor [bold type mine.—ASL]. This was not the result of a grand jury acting out on its own, but rather the usual outcome where a prosecutor gets what he wants out of a grand jury. Devon Anderson is up for election this year and is a Republican. She revealed the findings of the grand jury after the filing period had passed for her to draw an opponent in the primary.  ...
This type of misuse of the prosecutor’s office should not go unpunished. Either [Anderson] does not know what is going on in her own office and allowed pro-abort assistant prosecutors to transform a Grand Jury called to consider criminal charges against Planned Parenthood into a weapon against those who exposed the ghoulish trade of Planned Parenthood in the remains of their victims, or she is a pro-abort herself and planned this miscarriage of justice. In either case she is unfit to hold public office.

© John Cole, Scranton Times-Tribune.
That's as may be; however, the damage has been done, whether or not Daleiden and Merritt succeed in having the charges against them dismissed. Once again the credibility of the videos has been successfully called into question, just as were the testimonies and photos against Dr. Karpen, and what promised to be the beginning of PP's end turned into a pro-life black eye; that the videos may be 100% authentic and true is irrelevant. It's precisely because I knew such an outcome was possible, and because as a Catholic I'm against lying "for the greater good", that I didn't jump on the bandwagon when the first videos started coming out.

When the Roman politician Publius Clodius was on trial for sacrilege, allegations arose that he was having an affair with Julius Caesar's wife Pompeia, and that she had assisted him. Caesar asserted that neither was the case; however, he also divorced Pompeia. When asked why, Plutarch records his answer as, "Because I should wish even my wife to be free of suspicion." Or, as the dayan said to the younger rabbi who denied that a rumor about himself was true, "True it should be yet!? Isn't it bad enough that there's a rumor?"

Both Dr. [John] Zmirak and Dr. Peter Kreeft rightfully warn us of constructing a Pharisaic vision of God that smiles on adherence to a rigid, legalistic approach while ignoring the demands of justice and charity. But in [Mark 7:10-11; cf. Matthew 15:4-5], Jesus accused the Pharisees of a legalism that justified the evasion of the Law through the construction of a technicality.
That’s the other edge of the Pharisaic sword. In our eagerness to morally protect a tactic that seems to be working in our favor, we’re finessing Scripture, Tradition and the Catechism to death. It reminds me very much of the tactics the defense pursued in the Rodney King police-brutality trial: By stopping the damning videotape at various points during the replay, the [defense] lawyers created brilliant alternative explanations for certain events that, when taken together, succeeded in — if you’ll pardon the expression — turning black into white.
That’s how the culture of death works: it rationalizes the use of intrinsically evil methods to pursue good ends. It says to us, “Evil x isn’t as bad as evil y,” and asks us to ignore the fact that x is still evil. It plays with definitions; it provides examples that play on our emotions; it cites Scripture out of the context of salvation history. It appears to say to us, “Give us this ha’porth of tar, and we will save the ship,” when in fact it really says, “All the kingdoms of the earth will be yours, if only you fall on your face and worship me” (Matthew 4:9).
As St. Paul said, “Even Satan disguises himself as an angel of light” (2 Corinthians 11:14).
—"Lies and Lila: Caesar's Wife", Outside the Asylum, 2/24/2011

Let me put it another way: Consequentialism is why we have an abortion industry in the first place. We desire this (presumed) good outcome; if it matters at all, how we get this good outcome matters less than that we get it, especially that we get it in the quickest manner possible. Consequentialism is what has driven some of the worst, most controversial SCOTUS decisions over the last century and change, from the notorious Lochner v. New York (198 US 45 [1903]) to last year's Obergefell v. Hodges (576 US __), which not coincidentally cited Lochner as a precedent. AJ Samuel Alito mourned in his Obergefell dissent, "... preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means" (slip opinion at 102-103).

And speaking of precedents: just as Catholics point to Pius XII and St. John XXIII giving fake baptismal certificates to Jews during WWII, so do legal theorists point to Brown v. Board of Education (347 US 483 [1954]): to challenge Constitutional consequentialism is to call the landmark anti-segregation decision into question. But Roe v. Wade (410 US 113 [1973]) is much more a product of consequentialism than is Brown — so much so that, failing to choose between the privacy rationales offered in Griswold v. Connecticut (381 US 479 [1965]) and Eisenstadt v. Baird (406 US 438 [1972]), AJ William Brennan's majority opinion ultimately rested the right of privacy, and therefore the right to abortion, on the Court's ipsi dixerunt. By contrast, as the late judge Robert H. Bork pointed out, the outcome in Brown could have been achieved with better legal reasoning; it's only because the decision succeeded and was accepted despite the weakness of the majority opinion that anyone believes consequentialism to have been necessary (The Tempting of America: The Political Seduction of the Law, pp. 82–83). Again, we have a legal abortion industry because we have Roe v. Wade; we have Roe v. Wade because the Court came to embrace "results first, premisses to follow" thinking — consequentialism.

As much as we Christians are called to practice charity and mercy, we're also called to speak and have respect for truth. This obligation can't be considered secondary because, as Pope Emeritus Benedict XVI has taught us in Caritas in Veritate, charity and truth are so interconnected that, without one, the other suffers. Such must our respect for the truth that, even when we must decide, "This person has no right to the truth," we can't say in charity, "This person deserves to be lied to." Remain silent, if you must; be indirect or tactful, if you can without revealing a confidence. To lie, however, is to commit a sin — perhaps not always a mortal sin, but a sin nonetheless.

The more I consider the matter, the more I'm convinced that entrapment journalism is an inappropriate tactic for the pro-life movement. Christopher Tollefson said of the LiveAction videos five years ago, "Promising and welcome as the effects of these videos might be, they represent a real and dangerous corruption of the pro-life movement itself by endangering the pro-life movement’s commitment to its ideals of love and truth." This corruption becomes more apparent when, as in CMP's case, the tactic publicly backfires; it gives further substance to the radical feminists' claim that the pro-life movement is filled with "rightwing extremist nutjobs" who will stoop to any indecency in order to subvert women's rights.

Therefore, we need to adopt the "Caesar's wife" rule, and avoid tactics that seemingly promise shortcuts to victory in exchange for moral impurity. I realize that the longer victory is put off, the more abortions that are performed and the more babies that are killed. However, by refusing immoral tactics, we don't deprive other people of their moral agency, or assume responsibility for their choices. Let's invest our time and worry in doing the things that have been shown to really work: changing hearts and minds, through prayer, outreach, and telling the pro-life story.