Melissa Calusinski will seek relief from her conviction for the murder of Benjamin Kingan, via a Writ of Habeas Corpus, to be filed with a federal courthouse in either Rockford, or Chicago, Illinois.
The habeas petition, likely to be filed against Glen Austin—warden at Logan Correctional Institute, where Calsusinski is incarcerated—will seek to dispute the lawfulness of Calusinski’s conviction, and hope to reinvigorate a case that has consistently raised grave doubts as to the validity of her conviction.
While Kathleen Zellner’s—Calusinski’s postconviction attorney—decision to pursue her client’s case at a federal level does not close the door on potential further appeals at a state level, it does perhaps indicate a turning-point, and an unwillingness to tread these paths once more.
The Supreme Court of Illinois’ recent denial of Calusinski’s Petition for Leave to Appeal will likely have confounded her counsel for more than one reason: Calusinski has been here before. The Supreme Court of Illinois’ denial was not the first time they have refused Calusinski relief—her confession to Kingan’s murder was ruled voluntary—yet their eagerness to do so, in relation to time spent considering her latest appeal, may have drawn a line under Zellner’s faith in their open-mindedness.
Calusinski’s case, spanning some 10-years, has raised red-flags throughout its development. Questions raised relating to not only the methods used to obtain a confession from a suspect of borderline mental capacity—especially on a communicative level—but a then apparent, shaping of the evidence used to duly convict her, have abounded since her arrest and subsequent interrogation.
Much has transpired since Calusinski’s conviction: x-rays showing no evidence of a skull-fracture—cited on numerous occasions during her trial—helped lead to an evidentiary hearing, where the state chose not to counter/rebut findings by the most respected of Paediatric Neuroradiologist’s, Dr. Robert Zimmerman.
Further claims that Dr. Manual Montez’s testimony at trial was perjured, fell on death ears. Montez’s testimony was deemed to be more believable than that of Paul Forman’s—Lake County’s Deputy-Coroner at the time of Kingan’s death. Issues with Forman’s testimony revolved around his recollection of the number of x-rays taken during Kingan’s autopsy, and the timeline of events, documented via non-timestamped photos detailing two separate examinations.
Forman, during his time as deputy-coroner, testified on numerous occasions for the state. At no time during his previous testimonies was his mental health called into question. Forman, who is diagnosed as bi-polar, was often questioned over his inability to recount details during Calusinski’s evidentiary hearing by Steven Scheller—Scheller was lead-counsel for the prosecution during Calusinsk’s trial. While the disparity over the credibility of Forman’s testimony, whether for or against the state, could possibly be disputed, the contention that bipolarism impacts one’s recollections of events is medically unfounded.
Perhaps herein lies a key issue in Calusinski’s case. In trying to gain relief, specific facets of her case have been highlighted. For the most-part, those facets have centred on misconduct: either intentional—perjured testimony & partial disclosure of exculpatory evidence in the form of x-rays leading to Brady Violation claims—or due to inadequate practices—Dr. Eupil Choi’s failure to diagnose Kingan’s previous injury.
Choi’s self-admitted failure in diagnosing Kingan’s previous injury, was however, not the catalyst to Calusinski’s conviction.
The premise that Kingan was, ‘[g]rowing beautifully’ remains prevalent in court opinions regarding his ‘Relevant Health History.’ This premise, demonstrably proven—to a degree of scientific certainty—to be false, has perhaps been overshadowed by more sinister findings that point to Calusinski’s innocence.
Like Choi, Kingan’s paediatricians, Daniel Lum and Patricia Brunner, chose not to take steps beyond those of a cursory nature. Lum, upon hearing of a ‘golf-ball-sized bump’ on Kingan’s head advised his parents that no further action need be taken as the 16-month-old exhibited no signs for concern—he had not lost consciousness, nor vomited, and was ‘acting normally.’ Day care workers explained that the bump on Kingan’s head had not been noticed until after he awoke from a nap.
2-days-following, when Kingan drew a fever, his mother took him to see Brunner—who worked in Lum’s practice. While Brunner performed a physical examination with her hands, she felt no need for an x-ray or CT scan to be taken. The following 10-weeks would be the last of Benjamin Kingan’s short life.
From the September of 2008, until his untimely death on January 14th, 2009, Kingan’s head circumference had ballooned from the 50th percentile, to the 95th. The tragic fact that his skull was rapidly nearing its capacity was highlighted during Calusinski’s trial by Dr. Jan Leestma. Leestma.
Leestma’s analogy, although cautionary, highlighted many of the key issues in Calusinski’s case: symptoms are not always clear, and more importantly, relying on symptoms to forewarn against a potentially grave problem is dangerous. While a bank will certainly have the countermeasures in place to either warn, or stop you from getting in trouble, those systems are not necessarily in place where a diagnosis is not so easy to ascertain.
Many will feel that Kingan did not receive the due care and attention that he deserved. Some will go further and hold accountable both Lum, and Brunner for not taking the necessary steps in conducting a more thorough examination.
In hindsight, it is natural to—at the very least—question why those steps were not taken. Looking back some 10-years-later, it is essential to have the narrative corrected. Benjamin Kingan was not growing beautifully.
Zellner will have options open to her in relation to how she approaches Calusinski’s appeal to the federal court. Whether she chooses to address her client’s confession, perjured testimony, failure to disclose evidence of an exculpatory nature, or indeed a combination of these remains to be seen. Readdressing the ‘story’ that was told during Calusinski’s trial and subsequent appeals may prove significant however, owing to a new set of eyes—at a federal level—looking into the tragic death of Kingan.
With a federal judge set to look into Calusinski’s case, one would hope that they will start from the beginning and address proven falsehoods that make up key passages of Benjamin’s short life.
Tragically, Benjamin Kingan was not growing beautifully.
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