State Fights For Position Over Brady. Was Evidence Lawfully Tendered In The Case Of Melissa Calusinski?

Wednesday, April. 18th, saw the Oral Argument for Melissa Calusinski held at the Court of Appeals in Elgin, IL. Justices Kathryn E. Zenoff, Mary S. Schostok and Michael J. Burke heard arguments from Kathleen Zellner—representing the defence—and Mary Burns—representing the state.

Determining whether a Brady Violation occurred in the state’s disclosure of legible x-rays in Causinski’s case has long been key to evaluating whether she received a fair trial. Establishing manifest error in both the trial court’s factual findings, and credibility findings remains the burden of Calusinski’s attorneys.

Disclosure, and the level of disclosure that was afforded Calusinski’s original attorneys could prove to be requisite as to whether a Brady Violation is viewed to have taken place by the justices presiding.

During a pre-trial hearing on September. 7, 2010—8-weeks-prior to opening statements— state attorney’s disclosed x-ray images to Calusinski’s defence team via a compact disk. The 3 images, containing x-rays of Benjamin Kingan, had been saved in a JPEG format, and were by the state’s attorneys own reckoning, illegible. While the state accepts that the JPEG images tendered to the defence were illegible, they contend that Calusinski’s lawyers were in a position to access the state coroner’s computer, and in doing so, retrieve the same x-rays, but of a higher quality, and legible TIFF format.


Audio link to Oral Argument due to slight audio glitches on video format.

Judge Zenoff, addressing whether a Brady Violation had occurred, asked Kathleen Zellner, “Defence counsel asked for, and got an order from the trial court on October 21st allowing it to view all of the evidence that the coroner had, including the computer… How was there any suppression if the defence had access to it, and how then would this be a Brady Violation?” Zellner in response cited the duty of Calusinski’s defence attorney at trial, Paul De Luca, in obtaining legible x-rays, “What is the duty of Mr. De Luca, to of taken that next step when he was given the illegible x-rays in the JPEG format and to go in himself after the assistant state’s attorney had talked to, supposedly Mike Reid—County Coroner—and again been told the x-rays cannot be enhanced or improved.”

Whether De Luca did enough to acquire legible x-rays, and if it was within his duties to do so, will be for the justices to decide. While computer software was provided—along with a CD of images given to De Luca—that could enhance the x-rays, then state attorney Christen Bishop testified that she was unsuccessful in using the software to achieve such results. Perhaps more importantly, assistant attorney for the state at Calusinski’s trial in 2010, Mathew DeMartini, testified to having met with Mike Reid on September 16, in an unsuccessful attempt to gain access to legible x-rays from the coroners computer itself. Reid himself testified to not having any involvement in the case until some 5 years later in 2015.

In light of the information given to De Luca between the initial disclosure on September. 7th, and the October. 21st order granting him access to the coroner’s computer, the question was raised, should De Luca have hired an expert—Reid was on vacation at the time of the order being granted—to assist in the retrieval of legible x-rays? Reid’s testimony that he did not have a meeting with DeMartini, and that he didn’t attempt to open up any images could prove pivotal. While De Luca could have hired his own experts to view the coroner’s computer, given the information he was given by DeMartini—information directly refuted by Reid—did it lie within De Luca’s duty to go that far? Resources are not unlimited, especially for many defence attorney’s working on a limited budget.

The questions remain, firstly will the justices believe there was a deliberate effort to withhold evidence by the state, and secondly, will they believe De Luca adequately fulfilled his duty in obtaining x-rays that he had been given the means to do so by court order?

The manner of death by which Benjamin Kingan succumbed, unarguably played a key role by which the jury came to their verdict during Calusinski’s trial in 2010. Evidence entered during her Evidentiary Hearing in 2015, played an important part in yesterdays hearing. Amongst Kathleen Zellner’s arguments were Dr. Robert Zimmerman’s testimony affirming not only no skull fracture, but also that the injuries to Kingan were consistent with an accident. Added to this the affidavit of Dr. Eupil Choi confirming that he failed to recognise that Kingan was suffering from a chronic subdural haematoma—an injury predating that to the day Kingan died.

Kathleen Zellner addressing the media after Melissa Calusinski’s Oral Argument on April. 18, 2018. Courtesy of Chicago Tribune.

During arguments, Judge Michael Burke, spoke that, “Dr. Zimmerman’s testimony would have opened up a completely new theory that was unavailable to the defence at trial, and which goes to the very heart of the verdict.” Arguing on behalf of the state, Mary Burns reiterated the state’s view that such testimony would have been available to Calusinski’s defence had they retrieved the legible x-rays from the coroner’s computer, “I think I would question if it was unavailable because all the coroner’s data was available to the defence.’

Judge Mary Schostok asked Burns, “Wouldn’t the question be whether or not there was a reasonable probability that the jury would have credited Dr. Zimmerman’s testimony that there was no fracture? Isn’t that what we should be asking ourselves?” Burns again countered that, “[f]or a Brady claim, the first thing one has to be asking was, was the information tendered? Materiality comes after,” asserting that without a Brady Violation taking place, testimony akin to that of Zimmerman’s, would have been available at Calusinski’s original trial in 2010.

Melissa Calusinski: Calusinski is serving 31 years in prison for the murder of Benjamin Kingan.

The question remains, will the materiality of Zimmerman’s findings be admissible if the state’s tendering of x-rays is judged to be lawful? And due to this, should the trial court’s opinion that the JPEG image was equally as good after enhancement, as the TIFF image in countering Zimmerman’s testimony, bare credence. Judge Burke alluding to this in his questioning of Burns asked, “Is that within his [trial court judge Shanes] purview to make that finding in light of a radiologist testifying to the contrary, and no one else testifying the way that the trial court held…Does a judge have the expertise to determine whether something is radiologically sound?”

After all, it was the state who chose not to counter Zimmerman’s expert opinion as a radiologist, with one of their own. During Calusinski’s Evidentiary Hearing, it was Judge Shanes who offered his own opinion to devalue, or even discredit Zimmerman’s testimony.

Of note was also Judge Burke’s question as to the state’s strategy at trial, “You would agree though that the state relied extensively on the fracture to prove abuse as proposed to a chronic condition, and now the defence has come up with an expert to say there was no fracture.” Burns response of, “Absolutely, absolutely, absolutely,” whilst Burke was speaking, was met with a pause, to which Burke continued, “You’re saying that doesn’t affect the materiality of the situation?” Burn’s countered that, “I’m saying that I don’t think it’s sufficiently compelling to undermine a verdict that was based on a significant amount of medical testimony.” The fact that large portions of testimony would not have been offered had the existence of the skull fracture been refuted, appeared lost on Burns. On no fewer than 93 occasions the jury heard the words skull fracture.

Burns often stumbled during arguments—especially when addressing testimony given by experts for the defence. While seemingly unstudied in many aspects of Calusinski’s case, Burns remained resolute over Brady, and in particular the tendered prong of Brady. It has become further evident that the state has drawn its line in the sand, and it seems likely that the decision of the Court of Appeals over whether such a violation occurred will steer the direction of Calusinski’s case.

Yet as Judge Burke pointed out, “What was tendered was the JPEG, and the judge made a finding after the 3rd stage that that was tendered.” Yes, the JPEG was tendered with software designed to enhance the image, but—which was only briefly touched upon—not before the files in question had already been drastically reduced in their window-size via a reduction in metadata.

What is clear here, is that the tragic death of Benjamin Kingan has been compounded by the tragedy that befell Melissa Calusinski. To a degree, the state has conceded much by affirming that they relied so heavily upon the evidence of a skull fracture. By fighting so vehemently over the tendered prong of Brady and attempting to shift blame for the disclosure of legible x-rays towards De Luca, justice for both Kingan and Calusinski takes a back seat. Ethically, it is hard to fathom the state having a leg by which to stand on. Legally, it’s not for me to judge. This will be for Kathryn Zenoff, Mary Schostok, and Michael Burke to do so.

*Header picture courtesy of CBS.

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