A mental competency hearing was ordered Monday in the FACE Act prosecution of a Spokane, Wash., man accused of threatening to kill a Colorado physician.
The abrupt ruling by U.S. District Judge Marcia Krieger stunned courtroom observers after defendant Donald Hertz again complained about details of his alleged crime in the indictment.
“There are a lot of things in this plea agreement that are exaggerations and misconceptions,” told Hertz the judge.
Hertz, 71, is charged with two federal felony counts of violating the Freedom of Access to Clinic Entrances (FACE) act and making an interstate threat. The indictment accuses Hertz of calling the Boulder Abortion Clinic and telling a receptionist that a team of former soldiers was en route to Colorado to kill a member of Dr. Warren Hern’s family. The call was placed on June 23, just weeks after the murder of Wichita physician George Tiller, a colleague of Hern’s.
It was nearly an identical reprisal of the short-circuited Feb. 16 hearing when the retired real estate broker griped about the characterization of the phone call by federal prosecutors.
Krieger put the brakes on the Monday morning hearing after Hertz proceeded to tell a rambling story about a visit to a crowded neighborhood Starbuck’s coffee shop when asked if he understood the plea. After a brief recess to allow defense attorney Dustin Deissner to talk with his client, the judge ordered Hertz to undergo a psychiatric assessment within 30 days.
U.S. Attorneys Benjamin Hawk and Stephen Curran declined to comment on the case.
Deissner expressed shock that Hertz was again rejecting the signed plea agreement at the 11th hour.
“He is accepting responsibility for this,” said Deissner of his client’s alleged death threat. But it turned out to a bigger deal than he expected.” He said he was unsure of how the defense would proceed if Hertz is found not competent.
Through much of the hearing a frail-looking Hertz, casually dressed in a blue nylon track suit and tennis shoes, stared into space and rarely spoke to his attorney. Though he complained frequently about not being able to hear the proceedings. A court clerk twice provided him with amplification devices.
Leading up to the expected acceptance of his guilty plea, Hertz told the judge he had suffered a brain tumor several years ago and was being treated for a heart condition. Krieger expressed concern for the defendant’s cognitive capacity when he would equivocate in his answers to standard mental fitness questions and could not recall a lengthy list of medications he is taking.
Adding to the strange turn of events, the court bailiff reprimanded Hertz’ wife twice during the hour-long hearing for approaching the defense table and noisily rummaging through her purse.
The Spokane lawyers representing Hertz claim that he is not affiliated with anti-abortion protest groups. They assert that he was spurred to make the death threat after becoming enraged after reading news reports quoting Hern about Tiller’s murder.
Deissner was unsure if the Jan. conviction of Scott Roeder who was sentenced Apr. 1 to life imprisonment for Tiller’s death was a factor in Hertz’ decisions to reject the two plea agreements.
A FACE Act conviction carries up to six years in federal prison and a $350,000 fine.
Hertz, who is not in custody, is not expected to do jail time.
The case is likely to resume in June.