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One can speculate, tongue-in cheek, about Max Baucus' motivation for nominating his mistress Ms. Melodee Hanes to be U.S. Attorney for Montana. Maybe she was the best person he could find. Maybe she would do his bidding. Maybe it was her price to keep from going public about the circumstances of the affair. But rather than speculate, let us examine the statement released from his office:

After an extensive evaluation of all the applicants’ qualifications, Ms. Hanes was one of three applicants the third-party reviewer recommended for consideration.

He reviewed her qualifications, then he nominated her. U.S. Attorney is a very big job. I wonder what I would find if I were doing the reviewing?

Ms. Melodee Hanes resume indicates a bachelors degree in women's studies from the University of Utah in 1978 and a law degree from Drake Univesity in Des Moines in 1982. So far so good. Drake is a fine school. After spending four years in private practice, she became an assistant prosecutor in Des Moines, which as we all know is Iowa's Capitol.

In that position, she seemed to distinguish herself as a crusading young prosecutor focused on child abuse and sex crimes. So enterprising, in fact, that she was featured in a bestselling book entitled Cruel Deception: A Mother's Deadly Game. A Prosecutor's Crusade for Justice. She spent twelve years working in the prosecutors' office while also making a name for herself in Democratic Party circles in the state capitol and a national reputation for her aggressive crackdown on child abuse. She wrote the handbook on sexual abuse prosecutions in Iowa. She participated in a score of charitable organizations around town including the March of Dimes. She served on the board of the Iowa Dance Theatre. She gave speeches around the country and locally. These are the basic ingredients of the beginning of a fantastic career in public service by any reasonable measure.

Then, in 1999 she suddenly moved to Montana. Why?

A front page story in the Sunday July 11, 1999 edition of the L.A. Times may provide the answer. Distinguished reporter Barry Siegel noted in the lede:

COUNCIL BLUFFS, Iowa -- Months had passed, and still Rick Crowl couldn't purge images of the Lehmer baby from his mind. There'd been no obvious wounds on the 3-month-old, nothing you could see. No signs of massive trauma; no signs of any trauma. No skull fracture, no collarbone bruises, no head injuries, no bleeding in the eyes, no gross bleeding under the scalp. Yet Thomas Bennett, the state medical examiner, had diagnosed shaken-slammed baby syndrome. Thomas Bennett had called Jonathan's death a homicide.

So that's what Crowl had called it too. The prosecutor for Pottawattamie County had gone along with Bennett, even though he'd thought the autopsy report looked mighty thin. He'd filed first-degree murder charges against the Lehmer baby's parents. He'd put Joel Lehmer and Teresa Engberg-Lehmer in state prison for 15 years.

Stop. Now, you need to know that Dr. Thomas Bennett is the ex-husband of Ms. Melodee Hanes. Andrew Ramonas at Main Justice Blog has Dr. Bennett on the record saying:

"She was recommended for the position because of a very close and personal relationship with Max Baucus and she withdrew because of a very close and personal relationship with Max Baucus," Thomas Bennett, Hanes’ ex-husband, told Main Justice. Bennett and Hanes divorced in December 2008.

Back to the story of why Hanes and Bennett left Iowa for Montana. In the L.A. Times article, Siegel goes on to recount a story of an overzealous Dr. Bennett operating in his role as Iowa's State Medical Examiner. He finds child abuse where other doctors can't seem to find any. He so absolutely certain than any instance of child death is the result of homicide that he bends traditional autopsy customs to see to it that his determinations are followed up by prosecution to the fullest extent possible. The parents in this case, the Lehmers, won their case, largely because Dr. Bennett was proven to be a quack on the witness stand. With a prosecutor who had misgivings about it to begin with, the state withdrew its case against them. Bennett was unbowed. He was becoming a disgrace to his office, writing columns for newspapers and saying things like this:

He declared his nonchalance over the Lehmers' release: "I don't care about that. If Pottawattamie County wants to give them a medal, that's OK, as long as they do it using all the facts."

Three days later he leveled even stronger fire in a Des Moines Register opinion-page essay: "My respect for and belief in our judicial system have led me to maintain my silence during these attacks. These malicious attacks now have overstepped all bounds of professionalism and demand a response, in the media and the courts. . . . Why should any medical person subject himself to this abuse? . . . There is a sickness in Iowa. . . . Children in Iowa will suffer. . . ."

By the way, had Iowa looked into Dr. Bennett before they hired him, they'd have found he was state medical examiner of Mississippi where he was run out of the state for trying to exhume a body without a warrant on behalf of life insurance companies.

Now lets do some math here. On the one hand we have a zealous, ambitious prosecutor focusing on child abuse and on the other hand we have the state medical examiner who would have to testify if he found such abuse in a case involving death of a child. These two people have an intimate sexual relationship. Wouldn't you agree that might lead to some conflict of interest problems?

Not to Melodee Hanes. At least that was the opinion of the United States Court of Appeals for the 8th Circuit after reviewing one of the many cases that involved both Ms. Hanes and Dr. Bennett:

Every court that has reviewed this case has been struck by certain aspects of the trial and actions of prosecutors that violate the fundamental notions of fair play on which our legal system is based. For example, the Iowa District Court for Polk County, addressing Morales's application for post-conviction relief, found prosecutor Hanes's instruction to withhold medical records from the defense team prior to the second autopsy "suspicious at best" and the prosecution-arranged meeting at which Kevin's treating physicians changed their opinions about the nature of Kevin's brain injury "questionable." Morales v. Iowa, No. PCCE 37829, slip op. at 3, 19 (Iowa District Court for Polk County Apr. 30, 2001). The Iowa Court of Appeals, while affirming the denial of post-conviction relief, "agree[d] with Morales that certain questionable activities and practices, which became known after his trial, cast a level of doubt on some evidence used to convict Morales in the death of his son." Morales v. Iowa, No. 2-520/01-1328, 2002 WL 31529176, *10 (Iowa Ct.App. Nov. 15, 2002). The District Court reviewing Morales's habeas corpus petition aptly observed that the "pretrial and trial process [in Morales's case] at best falls short of our expectations for so serious an endeavor." Morales v. Ault, No. 4:03-cv-40347, 2005 WL 5166197, 1 (S.D.Iowa Sept. 28, 2005). The District Court summarized the most egregious errors as follows:

A prosecutor instructed that evidence be withheld. Prosecutors arranged a meeting between the Medical Examiner and treating physicians, arguably to impact their trial testimony to be more consistent with that of the Medical Examiner. Important microscopic slide evidence, relied upon by the Medical Examiner, was not pursued by defense counsel or produced by the prosecution during the trial, and the slides were destroyed while the case was on appeal. Similar opinions by this Medical Examiner, often based upon such slides, have arguably been discredited in other cases. The treating surgeon has now recanted his trial testimony, at least to the extent of placing any reliance on the opinions of the Medical Examiner. Defense counsel failed to pursue the slides, failed to interview treating physicians before their trial testimony, failed to investigate the Medical Examiner even by simply networking with other defense lawyers, failed to pursue the meeting between the Medical Examiner and other physicians in relation to their apparent change in position at trial from their prior reports, failed to make objections necessary to preserving a record for appeal, and failed to make an adequate offer of proof regarding the romantic relationship between a prosecutor and the Medical Examiner.

It is no wonder Melodee Hanes and Thomas Bennett struck out for the big sky country where nobody knew who they were. They left Iowa in disgrace.

Here we have a United States Court of Appeals saying a prosecutor withheld exculpatory evidence by explicit instruction. A Federal Court of Appeals, the second highest sort in the land, saying a Medical examiner that prosecutor relied on was completely discredited. Here we have a Court of Appeals saying there was a romantic relationship between prosecutor and expert witness. That prosecutor was Melodee Hanes.

Max Baucus thought that she ought to be U.S. Attorney in Montana. The top federal law enforcement official for the whole state, and a major springboard for a political career. Because of her qualifications. He said he performed an extensive evaluation. Apparently withholding evidence and having sex with the main witness didn't seem to bother him if he knew about it. Normally these sorts of things would disqualify a person for such a high office, as she apparently understood herself when she withdrew. That is why she is now a low ranking Justice Department official in a policy, not prosecutorial role. You don't take job like that when you think you ought to be U.S. Attorney and will face a Senate confirmation hearing.

Max Baucus' judgment is what needs to be questioned. I call for the Senate Ethics Committee to look into this matter and for Max Baucus to step down as Chairman of the Senate Finance Committee pending an investigation.

Originally posted to Triple-B in the Building on Sat Dec 05, 2009 at 05:09 AM PST.

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