Lawyer Withdraws from Hern Death Threat Case

Wendy Norris

The lawyer for an elderly man who phoned in a death threat against an abortion doctor is bailing on his client ahead of a July 20 competency hearing.

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.

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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.

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.

News Politics

David Daleiden Brags About Discredited Smear Campaign at GOP Convention

Amy Littlefield

Daleiden’s claims about the videos’ impact on Planned Parenthood contrast with a recent poll showing that support for Planned Parenthood has increased in the aftermath of the Center for Medical Progress' anti-choice smear videos.

David Daleiden, a year after he began releasing secretly recorded and deceptively edited videos claiming to show Planned Parenthood officials were illegally profiting from fetal tissue donation, appeared to boast about the videos’ purported impact at a luncheon during the Republican National Convention (RNC).

“I think it’s very clear that one year later, Planned Parenthood is on the brink, they’re on the precipice,” Daleiden said at the event, co-hosted by the Family Research Council Action and the Susan B. Anthony List. “Their client numbers are down by at least 10 percent, their abortion numbers are down, their revenues are down and their clinics are closing.”

The luncheon took place at the Hyde Park Prime Steakhouse, near the Quicken Loans Arena in Cleveland, Ohio, where the Republican National Convention is underway. Also in attendance at Wednesday’s luncheon were a slate of Republican anti-choice politicians, including Mississippi Gov. Phil Bryant, Kansas Gov. Sam Brownback, former Texas Gov. Rick Perry, Nebraska Sen. Deb Fischer, and North Carolina Rep. Virginia Foxx.

Daleiden—who is under felony indictment in Texas and the subject of lawsuits in California for his actions in filming the undercover videos—touted efforts to defund Planned Parenthood by state Republican legislators and governors, who used the Center for Medical Progress (CMP) smear videos as a basis for investigations. Those defunding attempts have been blocked by federal court order in several cases.

He celebrated Planned Parenthood’s announcement that it would close two and consolidate four health centers in Indiana, an effort Planned Parenthood of Indiana and Kentucky said would “allow patients to receive affordable, quality health care with extended hours at the newly consolidated locations.” Daleiden made no mention of last month’s Supreme Court decision overturning abortion restrictions in Texas, which dealt the anti-choice movement its worst legal defeat in decades.

“One year ago now, from the release of those videos, I think it’s actually safe to say that Planned Parenthood has never been more on the defensive in their entire 100 years of history, and the pro-life movement has never been stronger,” Daleiden said.

While his tone was victorious, Daleiden appeared to avoid directly claiming credit for the supposed harm done to Planned Parenthood. In a federal racketeering lawsuit brought against Daleiden and his co-defendants, Planned Parenthood has argued that Daleiden should compensate the organization for the harm that his smear campaign caused.

Republican congressional lawmakers have held at least five hearings and as many defunding votes against Planned Parenthood in the year since the videos’ release. Not a single state or federal investigation has produced evidence of wrongdoing.

Daleiden’s claims about the videos’ impact on Planned Parenthood contrast with a recent NBC/Wall Street Journal poll showing that support for Planned Parenthood has increased in the aftermath of the CMP smear videos.