The lawyer for an elderly man who phoned in a death threat against an abortion provider is bailing on his client ahead of a July 20 competency hearing.
Washington State lawyer Dustin Deissner has petitioned the U.S. District Court in Colorado to withdraw as counsel to Donald Hertz, 71, after nearly a year of foot-dragging by the defendant.
The Spokane retiree is alleged to have called the Boulder Abortion Clinic to warn that a team of former soldiers was en route from Spanish Fork, Utah, to kill Dr. Warren Hern’s family.
The call was placed on June 23, 2009, just weeks after the execution-style murder of Wichita physician George Tiller. Hern’s family was spirited away by U.S. Marshals to a safe house after the threat was reported. The incident also appears to be Hertz’ first foray into anti-abortion activities. He was unknown to reproductive health advocates in eastern Washington prior to his arrest.
Deissner’s law partner, Russell Van Camp, told RH RealityCheck that Hertz allegedly made the call because he was upset over Hern’s media statements following Tiller’s death. Hertz was angered that Hern said he would continue to provide third trimester abortions despite the increased risks of protester violence and terrorism.
Despite Van Camp’s assurances that he would mount a vigorous defense for Hertz after the first bombshell refusal to plea on Feb. 17, Deissner, who inherited the case, is shaking his client loose.
Deissner complains in his June 14 petition to the court that Hertz’ behavior has become erratic since he was indicted Aug. 25 on two federal felony counts of violating the Freedom of Access to Clinic Entrances (FACE) Act and making an interstate threat.
Hertz has twice agreed to accept plea agreements offered by Justice Dept. attorneys only to suddenly reject them in court.
Writes Deissner in his motion to withdraw:
I simply do not know at this time whether Mr. Hertz still intends to plead guilty, nor do I know whether he will again change his mind at the last minute. I hope he will not. But I had agreed to represent Mr. Hertz only for the purpose of presenting his plea. I am not experienced at criminal trial practice and do not feel I am qualified to try his case should the need arise. It was my intention to associate trial counsel should the need arise. Since I am unable to determine whether Mr HERTZ intends to plead or go to trial, I feel I must withdraw at this stage and Mr. HERTZ needs to obtain trial counsel.
U.S. District Judge Marcia Krieger ordered Hertz to undergo a competency exam after disrupting a second plea agreement hearing April 5 with a rambling, unrelated story about visiting a Starbuck’s coffee shop. The psychiatric examination remains sealed but Deissner’s petition hints that Hertz is capable of standing trial and assisting in his own defense:
A competency evaluation has since found that Mr. Hertz is suffering from some cognitive limitations which may be exacerbated by Denver’s altitude, however he is apparently able to understand the meaning and consequences of his actions.
Deissner also claims that unanticipated case hearings caused by Hertz’ dilly-dallying on the plea agreement has created a financial hardship on his practice:
Mr. HERTZ paid my office a retainer which has long since been exhausted, and Mr. HERTZ has not brought his account current. He now advises he is unable to pay any more fees, nor even pay the expenses of the last trip we made to Denver, let alone future trips.
Nitpicking over legal fees is not new for Hertz. U.S. Attorney Benjamin Hawk noted in an October 26 evidence motion a 1991 FBI investigation that Hertz allegedly threatened to assault an attorney unless he lowered his fees. He has been involved in 21 criminal and civil lawsuits since 1980 mostly stemming from bad business deals, according to Washington State court records. Hertz’ real estate license was nearly suspended in 1982 for “bad faith, dishonesty and untrustworthiness” by state licensing officials who deferred the action on condition they were no further infractions.
The current charges, however, are the most serious faced by Hertz in his colorful and combative legal history.
A FACE Act conviction carries up to six years in federal prison and a $350,000 fine. Sources close to the case have said that Hertz, who is not in custody, was not expected to serve jail time.
Judge Krieger granted Deissner’s motion to withdraw from the case and ordered Hertz to obtain a federal public defender.
The cost to taxpayers for the extended criminal proceedings, Washington, D.C.-based Justice Dept. prosecutors, U.S. Marshal Service protection of Hern and his family, and now, potentially, free defense counsel is unknown.
The previously scheduled July 20 competency hearing is now in limbo.