It's that child in the ER--or morgue--who finally makes the shaken baby controversy most complicated. Say what you will, it's hard to challenge someone who's campaigning against baby killers. To do so isn't politically palatable, or, for many, personally appealing. Dismay over child abuse trumps concern for civil liberties.
The nature of those usually accused in child deaths further confounds the situation. They most often are poor and uneducated. Often they're not the best caregivers. Often the boyfriend of an unmarried mother is involved. Often the boyfriend has a history.
As it happens, the Lehmer family in Council Bluffs fits this profile fairly well. In weighing what to do about Jonathan's death, Rick Crowl faced not just a difficult scientific dispute and a charismatic medical examiner. He also faced a pair of parents who were far from pristine.
Both Joel and Teresa, as Crowl understood it, had problems with drugs. They were so poor they couldn't afford a crib, so their baby slept on a blanket spread on the floor. They didn't marry until after the baby's death. Joel Lehmer previously had turbulent relationships with two other women. In 1993, he'd pleaded guilty to assaulting a girlfriend. Twice he'd relinquished parental rights to babies he'd fathered. He'd been urging Teresa to put Jonathan up for adoption. The day before the baby's death, they'd been arguing over that issue. Later, Joel, distraught, told a relative that he'd been "mean" to the child.
Crowl knew he could use Joel's comments in court. Coupled with Bennett's diagnosis, that certainly made it a case to prosecute. Against Teresa as well as Joel: If a caretaker allows abuse to happen, that's child endangerment, whoever did the shaking. Maybe she did it, for that matter. Their story left her alone with the baby, not him. It could have been Teresa.
Just one thing troubled Crowl: The Lehmers wouldn't give each other up.
He'd been making offers back and forth, first to Joel, then Teresa. Working each against the other. Almost always, you get one to turn. Not this time. Crowl went so far as to offer dismissal of charges for whoever would testify against the other. Neither would.
"I never shook Jonathan," Teresa told detectives over and over. "I never personally saw Joel do it. . . . I never saw Joel shake him. . . ."
"We have the medical evidence," the detectives kept saying. "There is no reason that Dr. Bennett would rule this if it didn't happen. He deals in facts only. . . . There is no reason for Dr. Bennett to lie."
"No. . . . no. . . . no. . . . no," Joel would insist. "NO! No, sir, no, sir. I didn't shake the baby. Teresa didn't shake the baby. I know Teresa better than she knows herself, and she didn't do this."
Crowl had to admit that's just not the way these things usually worked. No gross bleeds, no retinal hemorrhages, no parent flipping on the other. . . . This wasn't one of his strongest homicide cases
Still, the state medical examiner was calling it an obvious murder. Tom Bennett thought this a graphic example of shaken-slammed baby syndrome. For so long--too long, Crowl knew--prosecutors had failed to recognize child killings. You had a dead baby here, you had an offensive dad, you had an established expert talking with polished assurance. How could he buck that? How could he ignore a baby's death?
In the end, he decided he couldn't. After conferring with his investigators, Crowl in July 1997 filed first-degree murder charges.
Teresa drew county public defender Greg Steensland, Joel a local court-appointed lawyer named Drew Kouris. Neither attorney deposed Bennett, so neither questioned him about how he reached his diagnosis. Kouris did write John Plunkett, a Minnesota forensic pathologist, asking if he would review the case for the defense. Before he got a response, though, Crowl offered a deal: Plead to involuntary manslaughter and child endangerment; we'll agree to 15-year sentences.
The couple and their attorneys pondered. If they went to trial, a jury could find them guilty of first-degree murder. Under Iowa law, even second-degree murder would mean at least 42 years in prison. How could they expect to win? Especially since, as Drew Kouris put it, Thomas Bennett was a "superb courtroom witness with a national reputation."
The couple's lawyers nudged them toward accepting Crowl's plea. If they accepted, Steensland told Teresa, "I would consider that an intelligent decision given the findings of the medical examiner."
No, the couple said. We won't say we're guilty.
Case law offers an alternative: an "Alford plea," in which you maintain your innocence but admit that the county attorney can prove his case. On Oct. 2, 1997, the couple entered such a plea. "We were literally scared into taking the plea," Teresa Engberg-Lehmer told a reporter. "We were both told we could get a life sentence."