Melissa Calusinski Files Petition For Leave To Appeal With Illinois Supreme Court

Melissa Calusinski’s post-conviction attorney Kathleen Zellner filed her clients Petition for Leave to Appeal yesterday, July 16, with a request for Oral Argument should the petition be granted. Calusinski’s previous appeal to the 2nd District Court of Appeals was denied via an unpublished—by the court—opinion dated June 11.

Melissa Calusinski: Calusinski was sentenced to 31 years incarceration for the murder of 16-month-old Benjamin Kingan in 2009.

The granting of petitions by the Supreme Court of Illinois are hard to come by. Approximately only 5% of petitions offered, are subsequently accepted. Yet there are specific reasons for this. Often arguments tendered do not fulfil the necessary criteria to warrant the attention of the highest court in the State. Specifically in the State of Illinois, a potentially successful petition “[m]ust go beyond a mere discussion of error. It must point to how the controversy affects the substance of Illinois law or the ‘People of the State’.”


With Zellner’s latest filing, she has squarely addressed the Court of Appeals—and indeed the trial court before them—propensity for making judgements on matters outside their field of expertise. Respectively, Zellner cited, “[t]hree medical findings,” by the COA that were found within their opinion in denying Calusinski relief:


Indeed, the Court of Appeals seemingly errant opinion that, “Contrary to Dr. Zimmerman’s testimony, which leaves the impression that nothing existed, something is indisputably there,” belies the fact Zimmerman testified to a degree of scientific certainty, that no skull fracture existed. As for ‘impression[s],’ it would appear that the COA has offered its subjective view point. As for ‘something [being] indisputably there,’ that was not what was asked of Zimmerman. His testimony—as that of a world renowned paediatric neuroradiologist—spoke of what was indisputably not there. A skull fracture.

Furthermore, the COA assertion that, “[p]hysicians routinely order additional tests such as CT scans and MRI’s.” alludes to the fact that Dr. Eupil Choi—who carried out the autopsy on Benjamin Kingan—trusted upon his eyes and autopsy photographs rather than taking a cross-section of the ‘fracture’ for further analysis that would have scientifically proven whether or not such a ‘fracture’ existed and if so, importantly its age.

In keeping with their newly found medical expertise, the COA further opined that, “Indeed, the photographs in evidence clearly portray the purported fracture described by Dr. Choi, both on the outside and the inside of the skull.” However, what is clear here is the COA making judgements outside of its remit. For the court to weigh photographs more favourably than that of legible x-rays—in the TIFF format—is not only egregious, but something that the Supreme Court of Illinois should be interested in addressing. After all, shouldn’t the court of highest jurisdiction in any given state, be watchful of those courts below them offering opinions beyond their means that directly impact recourse to those that seek relief?

TIFF image x-ray—undisclosed at trial—of Benjamin Kingan’s skull and upper-torso. Dr. Robert Zimmerman testified during Calusinski’s Evidentiary Hearing that no skull fracture existed.

In addition to Zellner’s assessment that the COA acted outside of their role by, “Stepp[ing] into the shoes of an expert witness,”—akin to that which they admonished the trial court below them—she once more raised the issue of the quality of the x-rays offered during Calusinski’s original trial, and the reasons for their quality.

In a case that has questioned the integrity of many State officials called to testify, the elephant in the room remains, and as yet, has still to be addressed.

Jeffrey Mueller—testifying for the defence during Calusinski’s evidentiary hearing as a computer and imaging expert—brought to light that, “To a reasonable degree of software engineering certainty and imaging certainty,” further modifications were made to the JPEG images prior to being given to Calusinski’s original trial defence attorney Paul DeLuca. Not only were the images further modified, Mueller asserted that these ‘further modifications’ were made on a different computer.

Following on from the trial court’s decision to inexplicably value State witness Eric Stauffacher’s testimony rather than that of Mueller’s, the COA failed to address the fact that Stauffacher himself testified that he lacked the qualifications to render an opinion on the images. In essence, via his testimony, Mueller offered evidence of foul-play by that of the State. An issue that neither the COA or the trial court before them deemed necessary to address.

Rather than the specific intricacies of Calusinski’s case, reasons for the Supreme Court of Illinois granting Zellner’s latest petition would appear to rely heavily on the misuse of the preceding courts powers, and in particular their use of unqualified expertise when making rulings. As has been alluded to on numerous occasions during Calusinski’s evidentiary hearing, the state chose not to rebut Dr. Zimmerman’s testimony while only offering the testimony of a witness unqualified to represent an opinion in rebuttal to testimony given by Mueller. On both occasions, the trial court stepped in and sided with the State, a decision that while chastised by the COA was summarily upheld, and inexplicably further added to.

The forthcoming, and potentially subsequent decisions by the Supreme Court in relation to Calusinski’s case, will likely offer a fair indication as to what the most powerful court in the State of Illinois deems to be within the remit of the courts below it.


The State of Illinois is afforded the right to answer Melissa Calusinski’s Petition for Leave to Appeal. If and when their answer is received the Supreme Court will make their decision. Kathleen Zellner has requested an Oral Argument. However the Supreme Court is within its rights to rule on the petition—either favourably or unfavourably—without granting such Oral Argument.

If you have any questions or queries regarding this article, or indeed anything CJReform related please don’t hesitate to contact me here.


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