Jury Challenged with “Courage” and “Conscience”

Nov 14, 2019

SAN FRANCISCO, CA – Liberty Counsel presented the final closing argument yesterday in the six-week civil trial and addressed the jury with a powerful message of “courage” and “conscience.” 

Horatio Mihet, Liberty Counsel’s Chief Litigation Counsel, began his closing statements yesterday by saying, “Courage is the willingness to take a stand for your conscience, even if it means that you are standing alone.” 

Though the abortion giant had no evidence to support its multimillion-dollar civil lawsuit against Sandra Merritt, Planned Parenthood is attempting to punish her for her undercover investigation work with David Daleiden and Center for Medical Progress, which exposed its trafficking in human baby body parts. Liberty Counsel is defending Merritt. 

Mihet then continued his closing arguments by saying, “Members of the jury, along with her fellow investigators, Sandra Merritt took a stand for her conscience to investigate the corporate giant that is Planned Parenthood, and to report to the authorities and to the public Planned Parenthood’s ghastly and horrific business practices in selling human organs. And now, at the end of this exhausting six-week ordeal, it is my duty and my privilege to ask you to stand on your conscience, to reject Planned Parenthood’s vengeful and retaliatory lawsuit, and to return a complete defense verdict on all counts. 

Now when we started this journey together six weeks ago (feels like six years), I told you that we would answer the question of why. Why did Sandra Merritt leave the comforts of family, home and retirement to take on a two-billion-dollar corporate giant, knowing full well that Planned Parenthood could crush her with its lawyers and resources? The answer you heard from her is simple, and yet profound: her conscience would not let her forget the things that she learned about the trafficking of human organs.


•           Ms. Merritt could not forget the evil laughter of Dr. Miles Jones in the ABC News 20/20 video, who likened the human fetus to a “golden goose” and bragged about the obscene amounts of money he made in selling human fetuses piece by piece. 

•           Ms. Merritt could not forget the inconsolable weeping of Cindy Smith, the mother of twins in that ABC News 20/20 video, who was never asked to consent to the selling for profit of her unborn twins’ body parts.

•           Nor could Ms. Merritt ignore the head of fetal tissue purchaser and Planned Parenthood partner Advanced Bioscience Resources (ABR), who admitted in that ABC News 20/20 video that ABR gave its abortion provider partners manual syringes to maximize the dollar value of the human organs they obtained from patients, knowing full well that using manual syringes prolonged the abortion procedure by as much as 15 minutes. 

•           Nor could Ms. Merritt forget learning about the Stanford study involving human hearts procured by StemExpress – another Planned Parenthood partner – and hooked up to Langendorff perfusions. 

•           Nor could she forget the absolute horror when she learned from Mr. Daleiden and Dr. Deisher that Langendorff perfusions only work on hearts that are still beating, meaning that they must have been taken out of born-alive human beings. 

From Langendorff perfusions on live beating hearts, to fetuses “just falling out intact:”  Ms. Merritt’s conscience told her that she could not sit idly by, and that she needed to investigate whether people in the fetal tissue world were committing medical battery by changing abortion procedures without consent, or were cutting beating hearts out of living, born-alive human beings and selling them to the highest bidders to finance lavish lifestyles and Lamborghinis.

Now I know that these truths are very difficult to hear, and I’m sorry that you have had to hear them throughout this trial, and that I have to remind you of them today. But they should be difficult to hear, because we do not want to become a society where these kinds of things can be uncovered, heard and then swept under the rug and ignored. And yet, this is exactly what Planned Parenthood is asking you to expect that Ms. Merritt should have done. They’re asking you to believe and to hold that the only rightful and lawful response that Ms. Merritt, Mr. Daleiden and the other defendants could have had was to say, “Oh well, such is life – nothing I can do about that.” Turn a blind eye and move on. 

Well, ladies and gentlemen of the jury, I know that you can’t do that. I know that you can’t expect Ms. Merritt to have forgotten what she saw, because you can’t forget what you saw and what you heard in this courtroom over the last six weeks. I saw your natural human reaction to the videos that you’ve seen and the testimony that you’ve heard. And I can tell, based upon that reaction that the same conscience that God placed inside of Sandra Merritt and her colleagues, exists inside each and every one of you! And that’s why you don’t need me, a lawyer, to tell you that these things needed to be investigated and needed to be brought to light. You already know that to be true, and I ask you to issue a just verdict consistent with what you know. 

Now, what did Planned Parenthood do to discredit any of the extensive testimony and evidence gathered by Mr. Daleiden and Ms. Merritt prior to their first video recording? Just about nothing! Did Planned Parenthood bring in a witness to testify that it did not do business with ABR? No, because we know from undisputed testimony that it did. Did Planned Parenthood bring in a witness to testify that it did not sell fetal tissue, such as human hearts, to StemExpress? No, because we know from undisputed testimony that it did. Did Planned Parenthood bring in a witness to testify that Dr. Theresa Deisher was off her rocker when she told Mr. Daleiden that StemExpress hearts hooked up to Langendorff perfusions would have had to be still beating when procured? No, Planned Parenthood said nothing in response. Did Planned Parenthood bring in a witness from Stanford’s Independent Review Board, to tell you that the Langendorff study did not involve beating human hearts? Of course not. Don’t you think they would have brought someone if that testimony would have helped them? 

So what did Planned Parenthood do? It merely suggested that one of the many people in the 20/20 video later said that he may not have had first-hand knowledge of the profiteering taking place in the fetal tissue world. But Planned Parenthood did absolutely nothing to disprove any of the soul-searing statements of anyone else on that 20/20 video, such as by Dr. Miles “Golden Goose” Jones. Nor the breathtaking conclusion of bioethics expert Arthur Caplan, interviewed by 20/20 in that same story, and who concluded that: “That’s trading in body parts, there’s no doubt about it.” 

None of those statements were retracted or recanted. Not a single one. Not even a little bit. Oh sure, Planned Parenthood took six weeks of your time and your life and flew in lots of witnesses from all over the country to tell you how “shocked” they were to discover – from Planned Parenthood – that they were filmed in videos that were never actually released to the public. But when it comes to things that actually matter, Planned Parenthood said nothing. And that silence is deafening. It tells you all that you need to know. 

Now, let’s talk about the so-called “lies.” It is Planned Parenthood – not the defendants – who lied to you on the witness stand, and then yesterday Planned Parenthood lied again when it told you that defendants had lied. 

For example, you heard from Planned Parenthood’s Dr. Thomas Moran. Planned Parenthood flew him out here just so he could tell you that he was filmed in one video that was never released to the public. So why did he bother to come, if the video had never been released? Oh, that’s right, he had to tell you that he was really worried that he would be outed to the public as an abortion provider – that was the entire point of his testimony.  So, Planned Parenthood asked him, “Have you ever put out online that you are an abortion provider?” And he dutifully responded: “I have never done that.” Except that I then showed him the online pledge that he signed, where he identified himself online as an abortion provider, and pledged publicly to be a “loud and clear advocate for abortion rights.”  And then, when I asked him, “So your testimony that you have never, yourself, disclosed online that you are an abortion provider is not actually true, then, is it? What did he say? “Counselor, you got me.” In other words, the entire premise for him flying in to tell you about his fear of being outed as an abortion provider was false, because he was already out and proud. He said repeatedly that he was proud to have signed that petition, as was his right. 

So why does Planned Parenthood have to rely on fabricated facts to establish its “damages” in this case? Because it has no real damages, that’s why. Unfortunately, Planned Parenthood’s lying didn’t end there. 

Just yesterday, Planned Parenthood told you that Mr. Daleiden also lied to you and he told you from that stand that he was never asked to sign the National Abortion Federation (NAF) Confidentiality Agreement in 2015. “Oh, but we confronted him with footage from his own camera,” they said, “showing that he was asked at registration if he had signed an agreement, and only after we confronted him, did he admit his lies,” their fairytale story went. Now this entire, elaborate takedown of Mr. Daleiden was premised on the notion that he had testified under oath that he was never asked to sign a confidentiality agreement at NAF 2015. Planned Parenthood’s lawyer, Ms. Trotter, told you that’s what he said, and she even purported to show you a selectively edited and highly misleading portion of his testimony, to make it sound more believable. But let me show you what she left out. Let me show you what she had actually asked Mr. Daleiden about this on the stand, and what he actually said [show transcript]. 

So you see, Mr. Daleiden didn’t say he never was asked to sign a confidentiality agreement in 2015. Instead, he said he didn’t know for sure, but he recalled someone at registration possibly asking something about it, but “I don’t recall her exact words.” So, in order to make the case to you that Mr. Daleiden lied, Planned Parenthood had to lie about what he said in the first place. They took his “I don’t know” and “I don’t recall her exact words” and transformed them into “They never asked me to sign,” which Mr. Daleiden never said! Now why would they do that? And who, may I ask, is trying to pull a fast one on you now? And it gets worse, I’m afraid. 

Also yesterday, Planned Parenthood told you that whether or not a recorded conversation could be “overheard” by others is “irrelevant.” Do you remember that? Ms. Trotter purported to show you page 73 of the jury instructions. But it was just another selective and misleading edit. She showed you only the highlighted language here [show transcript], about a conversation being confidential if the recorded party expects no one is “listening.” But she again left out the entire three-point discussion that immediately precedes it, where the court instructed you: “To prove a violation, plaintiffs must show that a defendant did all of the following and that the person recorded had a reasonable expectation that the conversation was not being overheard.” 

So once again, where the court says that Planned Parenthood must show you that “the person recorded had a reasonable expectation that the conversation was not being overheard,” Planned Parenthood simply edits that out, and tells you that being overheard is “irrelevant.” Members of the jury, you can’t even trust anything that Planned Parenthood told you yesterday, let alone over the last six weeks. Their entire case is built on lies, even as they falsely accuse defendants of lying. 

Now, judged by the proper standard, which comes from the court’s actual and complete instruction, not Planned Parenthood’s edited version of it, Planned Parenthood’s recording claims become downright ridiculous and frivolous, because Planned Parenthood’s own witnesses repeatedly admitted that they could be overheard by others in the very public places where they were recorded. For example: 

•           Dr. Nucatola’s lunch video -   In the 4 ½ minute video that you watched, I counted no fewer than 30 different strangers to that conversation come within earshot of it – watch it again in the jury room, and just count for yourself. And then we have the gentlemen seated in the booth right next to them [show exhibit picture], only a couple feet away, who no doubt could overhear the conversation. And how do you know for certain that this lunch conversation could be overheard by others? Dr. Nucatola herself admitted it on the stand. 

•           Dr. Gatter’s lunch video - Ms. Trotter kept telling you yesterday that the restaurant where they were eating was empty. It may not have been overflowing with patrons, but there were plenty of complete strangers to that conversation within earshot. [show exhibit picture] Here’s a picture of the waiter reaching across the table to refill ice teas – I told you about him in my opening statement. The only thing longer than his reach across that table is Planned Parenthood’s overreach in this case. He is inches away from the mouth of Lauren Felczer, while she continues her conversation about the inner workings of her clinic, without any interruption from Dr. Gatter or anyone else. And like Dr. Nucatola, Dr. Gatter also admitted, multiple times, that the lunch conversation could be overheard by complete strangers [Read transcripts]. 

Now, did you notice how Planned Parenthood attempted to blame defendants’ “strategies and tactics” for the heinous things that Planned Parenthood’s own employees said on the videotapes? With Dr. Nucatola, we’re now told by Planned Parenthood that it had to be the wine that caused her to say the horrific things she said. But come on. She’s a medical doctor. She had one glass of wine with lunch. She drove herself there and home with all of her faculties present. They had her on the witness stand, and they didn’t ask her one thing about this ridiculous theory, because they knew what she would say. And, in fact, Dr. Nucatola testified that she fully stood by what she said on the video, even though Cecile Richards – her boss –apologized for it. So this drunken stupor theory is just another lie. And with Dr. Gatter, she drank iced tea, so they can’t use that excuse. 

So instead, she said that her callous “Lamborghini” remark was selectively edited and made to look bad even though she intended it to be a funny joke. But you heard the stipulation that the judge read, which Mr. Breen reviewed with you yesterday, the words on the video were actually spoken by the people on the video. Those words actually came out of Dr. Gatter’s mouth! 

And you also heard undisputed testimony that the full lunch conversation (along with all full videos) was released to the public, including to Planned Parenthood. So, if Planned Parenthood thought this was just a funny joke, it could have played the video in this courtroom, so we could all have a good and hilarious laugh about trading livers for Lamborghinis. But of course, they didn’t show you that video, because there’s nothing funny about it. So Planned Parenthood has no one to blame but itself for what its people said on the videos, and how the public reacted to them. Any other suggestion is outright false. 

Finally, my colleagues have already sufficiently debunked Planned Parenthood’s so-called “damages,” but let me say just a couple things about the punitive damages. In both of the jury instructions on punitive damages, you will see that the financial condition of the defendants is a factor you must consider in determining whether to award punitive damages, and how much. It was Planned Parenthood’s burden to bring you evidence of the defendants’ financial condition. It was not Ms. Merritt’s burden to take the stand and tell you that she collects a social security check of less than a thousand bucks per month. And it was not Ms. Merritt’s burden to take the stand and tell you that she had to scour the country to find a second-rate lawyer with a funny accent from Florida to represent her for free, because she can’t afford a fancy San Francisco lawyer for even one day, let alone six weeks.

Planned Parenthood had the burden of proof on financial ability, and failed miserably, not only as to Ms. Merritt, but as to all other defendants. 

But you know, putting aside Planned Parenthood’s complete evidentiary failure, the really outrageous thing here is that Planned Parenthood told you to think about Dr. Gatter as you’re considering how much punishment to inflict on Sandra Merritt and her colleagues. That’s the same Dr. Gatter that said on videotape that she wanted to get top dollar for the human body parts sold by her Planned Parenthood affiliate because she wanted a Lamborghini. They want punitive damages against the defendants for bringing that to light! 

And then they said they want you to think about Dr. Nucatola, too. That’s the same Dr. Nucatola that said on videotape that she was quite willing, and “very successful,” to change how she does an abortion, to change the orientation of fetus to get an intact head, or to crush above and crush below certain organs to maximize their value.  They want punitive damages against the defendants for bringing that to light! Yeah, Dr. Nucatola cried a river of crocodile tears when she was on the stand. But when she was at that lunch, and she didn’t have a jury to impress, she didn’t shed a single tear over the heinous and horrific things she was spouting while munching on her salad. 

So, where we have arrived members of the jury, is that those whose truly shocking and heinous words and conduct was exposed are now asking you to “punish and deter” with punitive damages the citizen journalists who went undercover to expose them, so that no such exposure could ever happen again in the future, and so that Planned Parenthood can go on about its billion-dollar taxpayer-funded business, and continue is fetal tissue “donation” program behind closed doors. This is outrageous! Is there no decency? Is there no decency? The mere thought of asking for any damages in this case, let alone punitive damages, transcends all bounds of decency, and should be rejected outright. 

Planned Parenthood was not damaged by anything that the defendants did, so please don’t allow this retaliatory revenge lawsuit to now become Planned Parenthood’s golden goose. This case comes down to a group of people who had the courage to take a stand for their conscience, even when doing so meant taking on a very powerful corporation, to investigate and bring to light some very heinous and dark practices that Planned Parenthood wanted to keep hidden.”

Mihet then closed with this challenge to the jury as he circled back to his opening statement: 

“The time has now come for each of you, members of the jury, to take a stand for your own conscience, and to render a verdict that you believe is just. And as I said at the beginning, courage is the willingness to take a stand for your conscience, even if it means that you are standing alone. There is so much at stake. Your decision here will have enormous consequences on many things that we hold near and dear in our country – bedrock American freedoms--like the freedom to investigate and report on matters of public interest. You didn’t ask to have this responsibility thrusted upon you, but I am confident that each of you will rise to the task and will do the right and just thing.” 

Liberty Counsel is a nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics. Liberty Counsel provides broadcast quality TV interviews via Hi-Def Skype and LTN at no cost.