For Rick Crowl, Jerry Jones' report was the crowning blow. Not even Bennett's customary emphatic defense--"I stand by my findings. . . . It's not like I'm making it up"--could sway him any longer. He still liked and respected Bennett but felt he had to go with what the experts were saying. The fact was, the state no longer had probable cause. Even if Joel Lehmer were mean to that baby, even if he wanted to put it up for adoption, that baby still didn't die of trauma.
Or, at least, Crowl couldn't prove it. He couldn't show that anything the parents did caused their baby to die. No way could the state win at a retrial. The defense would have Jerry Jones, plus the destroyed slides. By law, it would be assumed that missing evidence was beneficial to the defendant.
It's hard to imagine any other prosecutor doing what Crowl now did. It was one month before election day, and Crowl was up for reelection. The Lehmers were a dubious couple at best. They'd pleaded; he had them in jail. The easiest thing would be to let Brennecke file a motion for post-conviction relief. Go through the lengthy appellate procedure, wait out the election.
Instead, Crowl, on the evening of Sept. 24, just hours after hearing from Jones, called Judge Timothy O'Grady of the Iowa District Court in Pottawattamie County. "We have a problem," Crowl began. "I think we have some people in prison who shouldn't be there. I don't think I have a provable case."
The hearing commenced at 2:42 the next afternoon at the Pottawattamie County Courthouse in Council Bluffs. For the county appeared Rick Crowl. For the Lehmers appeared their original lawyers, Drew Kouris and Greg Steensland.
Brennecke was out of the country on an 11-day tour of China. Crowl, not wanting to wait, had called Kouris midmorning, without advance notice. We're going to court, he'd advised. You need to prepare a motion for a new trial.
"These motions," Judge O'Grady began, "allege that there has been evidence discovered since the judgment in these cases. Mr. Crowl?"
The county attorney rose. "Yes, your honor. The state is not going to resist the application, but in support of the state's position, we would like to call Dr. Jerry Jones."
On the stand, Jones again was unequivocal: Completely unconvincing . . . I could not interpret this in any way, shape or fashion as evidence of subdural hemorrhage. . . . I completely disagree with the findings and the interpretations by Dr. Bennett.
When Crowl finished his interrogation, Judge O'Grady posed his own question: "Dr. Jones, . . . How is it that your opinion differs so much with Dr. Bennett's? Do experts commonly disagree with interpretations of those photographs?"
Jones shifted in his chair, plainly uncomfortable at the notion of openly criticizing a colleague. "Well," he said. "I cannot explain Dr. Bennett's interpretation of this. I believe it is completely incorrect, and I don't believe that other competent pathologists in reviewing this would come to the same interpretation as Dr. Bennett. . . . I don't know how else to answer the question. . . ."
The standard for meriting a new trial is whether "important and material" evidence has been discovered that the defendants "could not have discovered before trial." There'd been no new evidence at all, of course, but since that's what was needed, that's what was recognized.
"I find that the standard has been met," declared O'Grady. "The motion for a new trial will be sustained."
Crowl rose. "Your honor, in light of the newly discovered evidence, the state moves to dismiss both cases in the interest of justice."
First the judge made sure neither defense attorney had an objection. Then, at 3:45, 63 minutes into the hearing, he said, "The state's motion to dismiss will be sustained."
Unaware of what had transpired, Brennecke arrived home from China late the next night, a Saturday. When he opened his Sunday newspaper, he saw the banner headline atop Page One: "Jailed Parents Cleared in Death."
Bennett Defends His Report
After the Lehmers won their case, it took a few hours for reporters to track down Bennett. By then he'd moved to Billings, Mont., where he works now as a private pathologist. That Saturday afternoon, Bennett, presented with the news out of Council Bluffs, insisted that he still had truth on his side. He not only defended his findings--he added to them the retinal hemorrhages that were notably absent in his autopsy report.
In what he later explained was a lapse of memory, he told a Des Moines Register reporter that Jonathan had bleeding in the brain and eyes: "You cannot diagnose SIDS when there is injury to the brain, including gross bleeding and retinal hemorrhages."
He issued a warning to Francis Garrity and other doctors: "The statements . . . made by various pathologists . . . are irresponsible, venomous and guaranteed to wind them up in court because of the libelous nature."