There was no possibility that Dennis had died from a blow to the head. It was highly unlikely that a fall on a flat surface could have caused this. Only 5% to 10% of the bruises on Dennis could have been caused by such a fall.
"It is essentially unconceivable to me, without a protruding object above the floor, that he could have been injured in this way," Woodburn said.
The specter of homicide hovered, but would not land in this hearing room in 1965. The lawyers danced around the matter, leaving much unspoken.
Judge Archie Gingold, in his findings at the close of the hearing, ruled that Dennis had been subjected to many incidences of cruel and severe abuse. A condition of neglect did exist.
But neither the judge nor anyone else was willing to face the implications of such findings. Instead the judge agonized, repeatedly expressing from the bench his sense of conflict and uncertainty.
This was the first child-abuse case he had handled. He would later learn much more, would attend seminars and organize a county task force on the problem, but it cannot be said that Gingold knew nothing in 1965 about the battered-child syndrome. He had read the early articles that by then had been published. He knew that parents otherwise free of major symptoms of psychotic illness could abuse children.
From the bench, he said he hoped that they could find something to explain the mistreatment of Dennis.
"There is a lot to be known about the science of this whole darn subject," he said. "Let's not build up some fiction that now we have done everything we should do."
On the other hand, he could not bring himself to embrace the notion that Lois Jurgens was a murderer.
No one here is being punitive, Gingold told the Jurgenses and their attorney from the bench. There is no evidence we are dealing with any people here who have any demon-like motives. That isn't an issue at all. They are good people. He liked them. The Jurgenses are not being attacked anywhere along the line. The threat of a criminal prosecution is way by the boards now.
That was why the judge wanted Lois Jurgens to consent to a thorough, inpatient examination by a psychiatrist he knew and trusted. Robert would remain in county custody for the time being.
The Jurgenses refused.
Donohue, their attorney, had allowed Lois before the hearing to be examined by a psychiatrist only under the strictest conditions. The defense picked the doctor, and set parameters on what questions he could ask. On the stand, the Jurgenses had refused to answer questions about Dennis. They had cited the Fifth Amendment protection against self-incrimination. Donohue was not inclined to relax such controls.
The defense attorney was still thinking about a criminal prosecution--even if no one else was. My clients have rights, he said.
Judge Gingold would not back down either. Many years later, he explained why:
"I was quite certain it was a homicide, quite certain," Gingold said recently in an interview.
Retired now for several years, he suffers from angina and does not go out much, but he recalls the 1965 hearing.
"I remember very clearly the pathologist coming in and saying it had to be a blow, not a fall, but I think the prosecutor felt he couldn't prove it, and I was on the same wavelength as the prosecutor. It's easy today to say, 'Why didn't they prosecute?' but it was a different time, a different time. . . . The prosecutor wasn't getting help from the White Bear Lake police--her brother was on the force. The welfare department case work was very limited. That doctor (Peterson) also presented problems--he was a typical doctor, couldn't believe his patient was killed."
There was enough evidence to sustain child abuse and neglect charges. That was all Gingold had to concern himself with. Homicide was not the issue at the hearing.
"You see," Gingold said, "I didn't have to go that far. . . ."
So Robert, on a temporary but semiannually renewed basis, remained in county custody, living in foster homes. The Jurgenses returned to their house on Gardenette Drive, childless but free of any charge. The word homicide remained unspoken. Dennis lay in the ground at St. Mary's Cemetery, no name given to his death.
For a time, that appeared to be the end of the story.