*Update: Since the publication of this article, Melissa Calusinski will appeal directly to the Supreme Court of Illinois by July 16th. CJRJ will have updates on Kathleen Zellner’s filing to the Supreme Court as soon as they are available.
What will be seen by many as a setback, will likely be viewed as par for the course by Melissa Calusinski’s postconviction attorney Kathleen Zellner. Exonerating the wrongfully convicted is a painfully slow process.
On June 11th, the 2nd District Court of Appeals affirmed a previous decision by the Trial Court of Lake County, Illinois, to deny Melissa Calusinski relief via her amended postconviction petition.
~For backstory on recent events related to Melissa Calusinski’s appeals~
Court of Appeals next to act in the case of Melissa Calusinski
Court of Appeals grants Oral Argument for Melissa Calusinski
State fights for position over Brady. Was evidence lawfully tendered in the case of Melissa Calusinski?
Calusinski—sentenced to 31-years incarceration for the murder of toddler Benjamin Kingan in 2009—had been hopeful that a new set of eyes—in that of the COA—would see newly presented evidence in her case in a different light. Certainly for the time-being, that appears not to be the case.
Zellner will now request a rehearing with the COA, due by July 2nd. A rehearing—although uncommon—will depend on Zellner’s arguments that the COA have overlooked or misapprehended key issues in its judgement. The process by which Zellner will now be taking is explained in greater via the link below.
Rule 367. Rehearing in Reviewing Court
Judge Kathryn E. Zenoff, delivering the judgement of the court, ruled that, “The appellate court held that the State did not violate Brady vs Maryland where the arguably undisclosed evidence was not material; the trial court’s finding that the State did not knowingly present perjured testimony at trial was not against the manifest weight of the evidence; thus, the appellate court affirmed the trial court’s denial of defendant’s amended postconviction petition.”
In a statement given shortly after the COA opinion was released, Zellner asserted, “We have found several significant factual errors in the opinion. . . . We strongly maintain our position that Melissa did not receive a fair trial.”
Clarification as to Zellner’s finding of ‘[s]everal significant factual errors,’ will become clear with the filing of her request for a rehearing. Judge Zenoff, who delivered the judgement in favour of the State, did so for the second time in a case that has yo-yoed between the state court’s of Illinois since Calusinski’s incarceration. In 2014, Zenoff denied Calusinski relief when finding that her confession was indeed voluntary, and that the trial court did not abuse its discretion in allowing rebuttal testimony from Dr. Manuel Montez. Calusinski requested a rehearing at this time too; one that would be denied by the appeals court; and furthermore by the Supreme Court of Illinois.
4-years on, Zenoff’s ruling will likely not come as a shock to Zellner, who after over 25-years of having established her own law firm, and with 20 exonerations to her credit, will have made appropriate countermeasures for such a decision.
With each and every ruling in Calusinski’s case the elephant in the room becomes ever more apparent. Calusinski’s evidentiary hearing—in September of 2016—was held under the proviso that the trial court consider the evidence presented at the hearing in the context of the trial record—and that the trial court must consider all the evidence, both old and new, together.
Often in Zenoff’s judgement she weighed the testimony of Dr. Robert Zimmerman against that of the witnesses—both for Calusinski and the state—who testified at the original trial. Zimmerman’s testimony—heard some 5-years later in 2016—would undoubtedly have impacted testimony given in 2011. Perhaps even to the degree that certain witnesses may not have even been called. Judge Zenoff’s judgement that Paul De Luca’s—Calusinski’s original trial attorney—trial strategy was not compromised by the lack of legible X-rays was clearly at odds with De luca’s testimony during Calusinski’s evidentiary hearing that, “if he had X-rays that showed no skull fracture prior to trial it would have impacted his choice of experts and affected his trial strategy.” Importantly, if he had retained certain experts, it would undoubtedly have impacted their testimony.
For the Court of Appeals to proffer that, “For Dr. Zimmerman to be right, four other experts have to be wrong,” ignores the introduction of legible X-rays. To imply that had the legible X-rays been available during the 2011 trial would not have altered their testimony belies causality.
Dr. Eupil Choi—who performed the 2 autopsies of Benjamin Kingan—came under scrutiny regarding his lack of adhering to protocol. Had legible X-rays been admitted into evidence during trial, his failure to take a cross-section of the alleged skull-fracture would have undoubtedly have become a far greater issue. Indeed, Dr. Shaku Teas—called by the defence as an expert—recommended “exhuming the body to evaluate [the ‘fracture’] histologically.” Documentation showing that Dr. Teas received X-rays of Kingan some 6-months before the State disclosed the illegible X-rays to De Luca was highlighted in Judge Zenoff’s judgement. However, not highlighted was the fact that 1 of the 3 X-rays was of an even poorer quality than that of those disclosed to De Luca, and the remaining 2 were of no better quality. Unlike the X-rays, the reasons for Teas not referencing them during her testimony was quite clear: they were of no value. The question that should be asked is surely: why was one of the X-rays received by Dr. Teas—in Jpeg format—a different file size to that by De Luca? The simple answer being that they were both further modified.
For arguments sake, even if there was a fracture—which the X-rays do not show—its age could not have be determined visually. For this to be done a microscopic analysis was needed. Both Drs. Choi and Montez’s failure to use such means were exposed during trial. Indeed it was again Dr. Choi’s reticence—and likely rush to judgement—that lead to him missing the existence of a chronic subdural haematoma in the victim—an error exposed to a degree at trial and further by Dr. Thomas Rudd shortly after he became Lake County Coroner in 2012. While Choi admitted to this error years later via a sworn affidavit, the damage had already been done. Both Choi’s and Montez’s preponderance for using their eyes rather than science was inexplicably supported by Judge Zenoff’s affirmation—with regard to the autopsy photos—that, “[s]omething is indisputably there.” That ‘something’ was repeatedly purported to be a fracture at trial, further prejudicing jurors. For a judge to suggest that ‘something [being] there,’ should cancel out a world renowned neuroradioligist’s assertion that there was no skull fracture, possibly points to where the land lies at present with Calusinski’s case at present. The COA doesn’t appear to either be listening, or understanding.
In relation to the undisputed findings that Kingan suffered a prior head injury in the months leading up to his death, the testimony of paediatricians at Calusinski’s trial would clearly have been seen in a different light. The often quoted—in court opinions—that Kingan was “[g]rowing beautifully,” is demonstrably false.
Kingan was anything but “growing beautifully.” A “golf ball sized lump” appeared after he banged his head in late October of 2008—some 10 weeks before he died. 8-weeks previously, Kingan’s head circumference had measured in the 50th percentile—50 percent being the average. 4-weeks after his October injury, his head circumference measured in the 75th percentile. Some 10 weeks further on—at the time of his death—he measured in the 95th percentile. Again, this is the elephant in the room, and by that I mean everybody knows it. Zellner knows it; the state knows it; the public knows it. More pertinently at this current stage of proceedings however is the fact that the Court of Appeals knows it.
Calusinski confessed—voluntarily according to the COA,in a decision upheld by the Illinois Supreme Court—to slamming Kingan down in a fit of frustration on a hard, flat surface while looking after him at a daycare centre in 2009. There was no “golf ball sized lump” on this occasion. There were no other injuries of any note whatsoever, just the alleged ‘fracture.’ Going back through testimony relating to that fateful day, it is worth noting that Calusinski had only returned to looking after Kingan for approximately 10 minutes when this is alleged to have happened.
Nancy Kallinger—another daycare worker—testified that she thought Kingan had banged his head on the tiled floor of the kitchen while she was washing some dishes. Upon Calusinski’s return, Kallinger had put Kingan in his bouncy chair—in the play area which had a carpeted floor—and he was falling asleep. By the time she returned some 10-20 minutes later, CPR was already being administered to Kingan. Calusinski, in this brief period of time had become so frustrated as to have slammed Kingan to the ground—with the force of being dropped from a 2/3 storey building according to Dr. Choi. Again, no notable injuries apart from the alleged ‘fracture.’
Calusinski’s impending confession would not only add weight to the state’s case, but importantly take a degree of scrutiny away from the lack of legible X-rays. Although her trial only took place some 7-years-ago the perception of false confessions has changed notably in subsequent years—there is still much work to be done, but progress is being made.
During Judge Zenoff’s 2014 judgement that Calusinski’s confession was voluntary, she made note that of the 10 hours Calusinski was held for interrogation, she spent ‘several hours of that time by herself.’ To consider these hours spent alone as respite, shows a lack of empathy and/or understanding. For anyone who has been intimidated or bullied, those hours spent waiting, alone with one’s thoughts, knowing that those interrogating or bullying you are due to return, are equally, if not more damaging than the hours of actual interrogation.
Another case—that of Brendan Dassey’s—with a false/coerced confession at its heart is due for consideration before the Supreme Court of The United States on June 21st. Dassey’s case—one of an intellectually challenged juvenile—bares comparison to that of Calusinski’s for a number of reasons due to their differences as much as their similarities. Dassey was 16 at the time of his confession, Calusinski 22. While Calusinski’s age does not fit in with the ‘special care’ stipulation set out by SCOTUS, special care should be afforded to each and every individual confessing to a crime. As with all confessions, the evidence should corroborate them. In Dassey’s case there was no corroborating evidence to support his confession. It would be hard to see the State of Wisconsin retrying Dassey if his confession were found to be false—though I would not put it past them. In Calusinski’s case, the continually referenced skull fracture, along with her confession lead to her conviction. With Calusinski’s confession ruled voluntary by the State of Illinois and the failure to disclose X-rays as they were intended—in TIFF format—not being viewed as a Brady violation by the COA it appears Calusinski’s case—unless the Illinois Supreme Court rules otherwise—will end up in a Federal Court, as did Dassey’s.
Due to his age and intellect—and exposure via the hit docu-series ‘Making a Murderer’—Dassey’s clearly coerced confession has brought a welcome spotlight upon false confessions. It is clear that special care should be undertaken when it comes to such individuals, and while SCOTUS already has statutes in place regarding the treatment of such cases, it is clear that they are not being implemented from the ground up.
While I am fervently in favour of this review, It is important to address the issue further and more broadly. It is not only juveniles that need protecting. The ability to be able to differentiate between individuals by age, IQ, and a variety of many other factors is only as good as its implementation. The idea of merely saying a potential suspect waived their Miranda Rights purely because they said they understood what was being said to them is not good enough. People often say they understand something when they do not, and for reasons not of a singular nature. Some may say so, so not to sound stupid. Some because they feel intimidated, and like most things, a combination of these factors is often the case.
While it is true that the COA latest ruling has little to do with Calusinski’s confession—this has already been ruled upon and seen to be voluntary—I allude to it for a reason. My opinion as a commentator, is that Calusinski’s case is likely headed for the Federal Courts. Once there, her confession can possibly be taken to task once more. I hope to be proven wrong, and my wish would be for this case to be resolved at a State level. However, as mentioned before, the chances of a rehearing with the COA are slight.
In Zellner, Calusinski has arguably the finest postconviction lawyer in the whole of the United States, but the process of exonerating the wrongfully convicted is arduous at best, especially in those case that involve a confession. After all, Zellner said herself “[m]ost cases with a confession take an average of 15 years to overturn if they are overturned.”
If the COA denies the rehearing, Zellner will duly appeal to the Supreme Court of Illinois. No stone will be left unturned, as each appeal will importantly become part of the record for which a further appeal[s] to the Federal Courts will ensue.
While all of this plays out, Melissa Calusinski spends her 10th year behind bars.
* Kathleen Zellner’s decision to forgo the potential appeal to the COA for a rehearing is likely manifold. Not only are the chances of a rehearing historically against the odds, but if a rehearing were to be granted, there are likely similar odds that the original ruling would remain the same.
It will now be for the Supreme Court of Illinois to decide if Zellner’s forthcoming petition—due July 16th—merits a further brief.
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