Competency Exam Ordered in Threat Against Abortion Provider

Wendy Norris

A judge orders a mental competency hearing for a Washington man who threatened to kill Colorado physican Dr. Warren Hern.

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.

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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.

Analysis Human Rights

ICE Releases Reports for 18 Migrants Who Died in Detention, Medical Neglect Is Suspected

Tina Vasquez

Though the death reviews released by ICE provide further insight into the conditions inside detention centers, the bigger concern among researchers and advocates is what they don't know.

A new report from Human Rights Watch (HRW) documents the deaths of 18 migrants in Immigration and Customs Enforcement custody from mid-2012 to mid-2015. In some cases, the deaths were likely preventable and the result of “substandard medical care and violations of applicable detention standards.”

These are not the only deaths that occurred, however. ICE acknowledges on its website that 31 deaths have occurred between May 2012 and mid-June of this year. It is unclear whether ICE intends to release information about the additional 13 deaths that have occurred.

Even so, these new findings add to a growing body of evidence showing what HRW calls “egregious violations” of medical care standards in detention centers. A February report found such violations contributed to at least eight in-custody deaths over a two-year period.

The public is just beginning to learn more about the deeply rooted problem, Clara Long, a researcher with Human Rights Watch and the lead researcher on the report, explained to Rewire. Long referenced an ongoing investigation by reporter Seth Freed Wessler at the Nation, which explores the numerous deaths that have occurred inside immigrant-only prisons.

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Though the death reviews released by ICE provide further insight into the conditions inside detention centers, the bigger concern among researchers and advocates is what they don’t know. For example, HRW worked with two independent medical experts to review the 18 death reviews released by ICE. The experts concluded that substandard medical care “probably contributed to the deaths of seven of the 18 detainees, while potentially putting many other detainees in danger as well.” Long told Rewire that the information provided by ICE simply wasn’t enough for their independent medical experts to determine that all 18 deaths were related to inadequate medical care, but that it was “likely.”

So there is the larger, systemic issue of inadequate medical care. Researchers at HRW also don’t know exactly how ICE collects information or why the agency releases information when it does. There’s also the core of the issue, as Long noted to Rewire: that the United States “unnecessarily” detains undocumented immigrants in “disturbing conditions” for prolonged periods of time.

Major Failures Lead to Death

The new HRW report identified two of the most dangerous ways ICE is failing migrants in detention: not following up on symptoms that require assistance and not responding quickly to emergencies. Both failures are illustrated by the case of 34-year-old Manuel Cota-Domingo, who died of heart disease, untreated diabetes, and pneumonia after being detained at the Eloy Detention Center in Eloy, Arizona.

ICE’s death review for Cota-Domingo suggests there was a language barrier and that Cota-Domingo was worried about having to pay for health care, which isn’t surprising given that detention centers make migrants pay for things like phone calls to their attorneys and family members. HRW asked Corrections Corporation of America, the company that runs the Eloy Detention Center, about potential fees for medical care, and it said there are no fees for such services at Eloy. For whatever reason, Cota-Domingo was not aware he had a legal right to access the medical care he needed.

When it became clear to his cellmate that Cota-Domingo was in serious need of medical attention and was having trouble breathing, the cellmate “banged on a wall to get a guard’s attention. His cellmate said he did that for three hours before anyone came to help,” Long said. The researcher told Rewire the death report outlines how investigators checked to see if the banging would have been audible to correctional officers.  It was. “Once [the cellmate] got their attention, our medical experts said this was something that should have been followed up on immediately, but the nurse decided to wait several hours before doing anything. All of these sluggish responses went on for eight hours. This is not how you treat an emergency,” Long said.

As Human Rights Watch noted in the report, “When officers finally notified medical providers of his condition, they delayed evaluating him and finally sent him to the hospital in a van instead of an ambulance. Both medical experts concluded that the combination of these delays likely contributed to a potentially treatable condition becoming fatal.”

In other death reviews by ICE, the agency’s own records show “evidence of the misuse of isolation for people with mental disabilities, inadequate mental health evaluation and treatment, and broader medical care failures.” Tiombe Kimana Carlos, Clemente Mponda, and Jose de Jesus Deniz-Sahagun all committed suicide in ICE detention after showing signs of “serious mental health conditions.” HRW’s independent experts determined that “inadequate mental health care or the misuse of isolation may have significantly exacerbated their mental health problems.”

It’s important to note that none of the death reviews released by ICE admit any wrongdoing, and that’s primarily because they don’t seek to examine whether medical negligence was at play. The reports simply present information about the deaths.

“There is no conclusion drawn, really,” Long told Rewire. “There’s one [report] in particular that even goes beyond that; it doesn’t even take into account the quality of care that led to the death, even though it’s clearly an issue of quality of care. That raises the question: What is the report for? ICE doesn’t conclude the cause. If you read [the death reviews], you can see there’s a lot of detailed information included in them that allows someone with expertise in correctional health care and who is familiar with how these systems should work, to make an assessment about whether care contributed to death, but that’s not something ICE doesat least not in the information we are able to access.”

ICE’s Murky Death-Review Process 

In a statement to Rewire, ICE explained that when a person dies while in the agency’s custody, their “death triggers an immediate internal inquiry into the circumstances.” The summary document ICE releases to the public is “the result of exhaustive case reviews conducted by ICE’s own Office of Detention Oversight (ODO), which was established in 2009 as part of the agency’s comprehensive detention reforms,” Lori K. Haley, a spokesperson with ICE, told Rewire in a prepared statement.

In fact, the ODO was created as a direct result of a series of reforms from the Obama administration after reports of human rights abuses and deaths in detention centers. The death review it produces includes a mix of findings from ICE’s own investigators and from a Beaumont, Texas-based company called Creative Corrections.

According to its website, Creative Corrections serves “local, state and federal government agencies,” offering “training, advising, professional management and consulting services” in “correctional, law enforcement, rule of law, and judicial systems.” The company contracts include the Department of Homeland Security (DHS).

“From what we can see from the documents, both ICE and Creative Corrections interview various people involved, check records, do what seems to be a pretty robust investigation for the death review,” Long said. “Unfortunately, in the set of death reviews that we used for this investigation, [the public doesn’t] have access to the Creative Corrections reports or any of the exhibits that go along with them.”

As the ICE spokesperson noted, the summary documents are typically written by ICE staff. The documents released to the public do not include medical records, full reports from Creative Corrections, or any exhibits that would provide more insight into the apparent medical neglect resulting in an estimated 161 people dying in ICE custody since October 2003. Six migrants have died in ICE custody since March 2016, two of whom died at two different detention centers in the same week. The causes of these most recent deathsand whether they can be attributed to medical neglect—is still unknown.

“If we had access to all of the information gathered during these investigations, including the reports from Creative Corrections, they would be very rich sources of information,” Long said.

Long and other researchers are also hoping for more information regarding the deaths that happen just after migrants are released from ICE custody. Teka Gulema, an Ethiopian asylum seeker detained at Etowah County Detention Center in Gadsden, Alabama, was released from ICE custody in November 2015 while in the hospital after becoming paralyzed from a bacterial infection acquired in detention. He died in January.

“One concern we have, and it’s a very big fear, is that there are multiple reports of folks who are released from ICE custody while in critical condition,” Long said. “When they die, they are no longer counted as in-custody deaths [by ICE]. We’re worried that’s a loophole being exploitedand for obvious reasons, we don’t have a number in terms of how often this is happening.”

The researcher said she has “no idea” when or why ICE decides to release information, including death reviews.

ICE did not respond to Rewire‘s request for information about its schedule or process for releasing such information.

“Maybe they released the 18 reports because they were cleared for release. Maybe a congressional office asked for them. Maybe they decided to be transparent. It could have been a [Freedom of Information Act] request from the ACLU. I wish I knew, but we really have no idea who decides—or why they decide—to release information, especially without making anyone aware that it’s been released,” the researcher told Rewire.

In April, ICE posted a series of spreadsheets about the inner workings of the detention system on their website that Long said provided a lot of information about how detention operates. The spreadsheets were removed from the site in a matter of days, too soon for many researchers—including HRW—to download them all.

“It’s a big system. We still don’t totally know how it works, which in itself is a major problem,” Long said. “One of the biggest lessons we’ve learned is to always check the ICE website. You never know what you’ll find.”

Rethinking Detention

DHS secretary Jeh Johnson is engaging in what some advocates are calling an “enforcement overdrive,” by funneling more undocumented immigrants into an already overcrowded detention system thanks to the detention bed quota established in 2009. This quota requires 34,000 undocumented migrants be locked up each day. It is in place to ensure more people get deported, though it’s costing taxpayers $2 billion a year while also creating “a profitable market for both private prison corporations and local governments,” the National Immigration Forum has said.

Reporting for the Nation, Michelle Chen recently noted that “migrants are warehoused under convoluted partnerships involving private vendors and state, local, and federal agencies. Homeland Security may contract out security duties to, or use facilities owned by, private vendors—dominated by Corrections Corporation of America (CCA) and GEO Group—with preordained headcount distributions ranging from 285 in Newark to more than 2,000 in San Antonio.”

Long told Rewire that 80 percent of migrants currently in detention are in what is considered “mandatory detention,” which, according to the Immigrant Legal Resource Center, means that “non-citizens with certain criminal convictions must be detained by ICE. People who are subject to mandatory detention are not entitled to a bond hearing and must remain in detention while removal proceedings are pending against them.” This also means that those in mandatory detention aren’t allowed to have an individual assessment by ICE of their case, “so they just sit in immigration detention indefinitely,” Long said.

“This system doesn’t work. We’re detaining far too many people for far too long and not determining on an individual level if they should be detained in the first place, taking into account all of the options available,” Long said. Options include being monitored by ICE using telephonic and in-person reporting, curfews, and home visits.

Long joins a long list of undocumented community members, researchers, organizers, activists, and other advocates pushing for the Obama administration—and whoever comes after it—to see detention as a last resort, rather than the only resort.

“We spend a lot of time talking about the disturbing conditions in detention centersthat’s what our report is about. But step one requires taking a step back and rethinking this system and how it’s unnecessary and also abuses vulnerable peoples’ rights,” Long said. “In terms of the legality of treating people this way, under U.S. and international law, people who are detained are entitled to medical treatment. The state has an obligation to provide care to this population. They are failing, and people are dying.”

Analysis Law and Policy

After a Year, What Has the Smear Campaign Against Planned Parenthood Accomplished?

Jessica Mason Pieklo & Imani Gandy

One year after David Daleiden and the Center for Medical Progress released the first of a series of videos targeting Planned Parenthood, there is still no evidence of wrongdoing by the reproductive health-care provider.

See more of our coverage on the anti-choice front group, the Center for Medical Progress here.

One year ago, David Daleiden released the first in a series of videos that he claimed proved Planned Parenthood employees were unlawfully profiting from fetal tissue donation and violating the federal “partial-birth abortion” ban. With the backing and counsel of Operation Rescue President Troy Newman and the help of a woman named Sandra Merritt, among others, Daleiden had created a front group called the Center for Medical Progress (CMP).

He then disguised CMP as a legitimate biomedical research organization—despite overwhelming evidence, including CMP’s own corporate documents, to the contrary—and used it to gain access to abortion clinics and private meetings. The organization released 11 videos by the end of 2015; in a year’s time, Daleiden and CMP had released a total of 14 videos. All have been debunked as deceptively edited and misleading.

So what have those videos truly accomplished? Here’s a summary of the fallout, one year later.

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Lawmakers Mounted Attacks on Planned Parenthood

In response to CMP’s videos, more than a dozen conservative governors launched investigations into or tried to defund Planned Parenthood affiliates in their states. States like Arkansas, Kansas, and Utah had their attempts to defund the reproductive health-care centers blocked by federal court order. The Obama administration also warned states that continuing to try and strip Medicaid funding to Planned Parenthood centers violated federal law, though that did not stop such efforts throughout the country.

Additionally, congressional Republicans began their own investigations and defunding efforts, holding at least five separate hearings and as many defunding votes. Planned Parenthood Federation of America (PPFA) President Cecile Richards provided hours of congressional testimony on the lawful fetal tissue donation option available to some Planned Parenthood patients. Other affiliates do not offer such donation programs at all.

Not a single investigation at either the state or federal level has produced evidence of any wrongdoing. Still, many continue today. To date, Congress alone has spent almost $790,000 on the matter.

Violence Against Clinics Escalated

Just weeks after CMP released its first video, there was an act of arson at a Planned Parenthood health center in Aurora, Illinois. The following month, and after the release of three more smear videos, a car fire broke out behind a locked gate at Planned Parenthood in New Orleans. Abortion clinic staff and doctors around the country reported a significant uptick in threats of violence as Daleiden and CMP released the videos in a slow drip.

That violence spiked in November 2015, when Robert Lewis Dear Jr. was arrested for opening fire at a Colorado Springs Planned Parenthood, a siege that left three dead. Dear told investigating officers his violence was “for the babies” because Planned Parenthood was “selling baby parts.” A Colorado court has so far deemed Dear incompetent to stand trial. Dear’s siege was not the last incident of clinic violence apparently inspired by Daleiden and CMP, but it has, to date, been the most lethal.

Dear’s next competency hearing is currently scheduled for Aug. 11.

A Lot of Lawsuits Got Filed

The tissue procurement company StemExpress and the National Abortion Federation (NAF) filed suits in July of last year. In January 2016, Planned Parenthood did the same, alleging that Daleiden and CMP had engaged in conspiracy and racketeering, among other things.

StemExpress Sued Daleiden and CMP

StemExpress, one company to whom Planned Parenthood was supposedly selling tissue, sued CMP, Daleiden, and Merritt in California state court. StemExpress asked the court for an injunction blocking CMP from releasing any more videos that were surreptitiously recorded at meetings the pair of anti-choice activists had with StemExpress staff. The complaint also included allegations of conspiracy, invasion of privacy, and conversion of property (based upon Daleiden’s taking confidential information from a former StemExpress employee, including accessing her StemExpress email account after she was no longer employed at the company).

Although it issued a temporary restraining order (TRO), the court ultimately declined to convert that into an injunction, citing First Amendment concerns that to do so would constitute prior restraint, or pre-publication censorship, on Daleiden and Merritt’s right to free speech. In other words, Daleiden and Merritt are free—at least under this court order—to continue releasing videos involving StemExpress employees while the suit proceeds.

The case is set for trial in January 2017.

National Abortion Federation Sued Daleiden and CMP

About the same time that CMP and Daleiden were battling StemExpress in court, NAF filed suit in federal court in San Francisco, alleging civil conspiracy, racketeering, fraud, and breach of contract, among other claims. Like StemExpress, NAF sought a temporary restraining order blocking any further release of the attack videos. Judge William Orrick issued the TRO and later, after a protracted discovery battle, converted it into a preliminary injunction. Thus, CMP is prohibited from publishing any videos of footage taken at NAF’s annual meetings, which Daleiden and Merritt infiltrated in 2014 and 2015, while the suit proceeds.

As they had in their battle with StemExpress, Daleiden and CMP claimed that prohibiting publication of the videos constituted a prior restraint on speech, in violation of the First Amendment. But unlike StemExpress, which was trying to prohibit the publication of videos detailing conversations that took place in a restaurant, NAF sought to prohibit publication of video footage secretly recorded at meetings. Judge Orrick found that Daleiden had waived his First Amendment rights when he signed a confidentiality agreement at those meetings promising not to disclose any information he gained at them.

And, as in other court battles, one of the preeminent claims Daleiden and his cohorts raised to excuse his tactics—creating a fake tissue procurement company, assuming false identities through the use of false identification cards, getting people drunk in order to elicit damaging statements from them, and signing confidentiality agreements with no intention of following them—was that Daleiden is an investigative journalist.

Judge Orrick condemned this argument in strong terms: “Defendants engaged in repeated instances of fraud, including the manufacture of fake documents, the creation and registration with the state of California of a fake company, and repeated false statements to a numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project. The products of that Project—achieved in large part from the infiltration—thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal misconduct. Defendants did not—as Daleiden repeatedly asserts—use widely accepted investigatory journalism techniques.”

In an amicus brief in the same lawsuit, submitted to the Ninth Circuit Court of Appeals in early June, 18 of the country’s leading journalists and journalism scholars noted that “by calling himself an ‘investigative journalist,’ Appellant David Daleiden does not make it so.”

“We believe that accepting Mr. Daleiden’s claim that he merely engaged in ‘standard undercover journalism techniques’ would be both wrong and damaging to the vital role that journalism serves in our society,” the journalists and scholars continued.

Daleiden and CMP have appealed the preliminary injunction order to the Ninth Circuit Court of Appeals, where the case currently sits pending a decision.

Planned Parenthood Sued Daleiden and CMP

Six months after StemExpress and NAF filed their lawsuits against the orchestrators of the smear campaign, PPFA filed a whopping one of its own in California federal court, alleging civil conspiracy, racketeering, fraud, trespass, and breach of contract, among other civil and criminal allegations. PPFA was joined by several affiliates—including Planned Parenthood of the Rocky Mountains, where Dear was arrested for opening fire in November.

Daleiden has asked the court to dismiss Planned Parenthood’s claims. The court has so far declined to do so.

David Daleiden and Sandra Merritt Were Indicted on Felony Charges

Daleiden and his allies have not fared well in the civil lawsuits filed against them. But both Daleiden and Merritt also have pending criminal cases. After an investigation into Planned Parenthood Gulf Coast sparked by Daleiden’s claims, a Texas grand jury declined to indict the health-care organization for any criminal conduct. The grand jury instead returned an indictment against Daleiden and Merritt on a felony charge of tampering with a governmental record, related to their use of false California driver’s licenses in order to gain entrance into the clinic. Daleiden was additionally charged with a misdemeanor count related to the purchase or sale of human organs.

In June, Harris County Criminal Court at Law Judge Diane Bull dismissed the misdemeanor charge. Daleiden and Merritt’s attorneys, who called the dismissal a victory for the anti-choice movement, are still trying to get the felony charged dismissed.