Melissa Calusinski: Status Hearing Set For February 28th.

* Melissa Calusinski’s status hearing has been postponed. Judge Martha Pacold made the decision to reschedule initially on Feb. 27th. Due to the ongoing Corona-virus pandemic no further details as to when Melissa’s appeal will resume have yet been released-as of April 29th, 2021

The case of Melissa Calusinski, sentenced to 31 years in prison for the murder of 16-month-old Benjamin Kingan in 2009, is due to once more gain momentum via a status hearing set for Feb. 28th, in the United States District Court for the Northern District of Illinois.

The transition from state court to that of a federal court, saw Calusinski file her Writ of Habeas Corpus in March of last year; followed by further court filing by the state and petitioner respectively. Duly, the district court set a date for Nov. 25th in relation to Calusinski’s status hearing, but under advisement, a further hearing has now been set for Feb. 28th.

Timeline of events with filings hyperlinked:

June 11th, 2018: 2nd District Court of Appeals denies Calusinski postconviction relief.

March 27th, 2019: Calusinski files Writ of Habeas Corpus with the United States District Court for the Northern District of Illinois.

August 26th, 2019: State’s response to petitioner’s Writ of Habeas Corpus.

September 23rd, 2019: Calusinski’s reply to state’s response.

November 25th, 2019: District court holds initial Status Hearing for Calusinski, and issues a continuance for Feb. 28th, 2020.

Calusinski; found guilty of first degree murder and aggravated battery of a child, has long contended that material evidence; in the form of legible x-rays, were withheld prior to, and during her trial back in 2011. Calusinski’s lawyers have consistently maintained that Kingan’s death was due to a preexisting injury; a chronic subdural hematoma, which lead to a final fatal bleed on January 14th, 2009, while Kingan was in Calusinski’s care.

State attorneys contended that Calusinski forcibly threw Kingan to the ground—aided by a disputed confession; Calusinski tested a ‘borderline’ verbal IQ score of 74, with extreme vulnerability to suggestion, and was interrogated for between 9 and 10 hours by local police—that directly led to the toddler’s death.

State and defense witnesses alike, were unable to conclusively affirm the presence of a skull fracture that was repeatedly referenced to by state attorneys during Calusinski’s trial. Reasons behind their uncertainty were due in part to the illegibility of x-rays handed to Calusinski’s defense team prior to her trial, and the failings of then Lake County Coroner, Eupil Choi’s to take cross-sections of the purported fracture at the time of autopsy.

Throughout her appeals, Calusinki’s attorneys have consistently raised claims of Brady violations and perjured testimony, with the Brady claims being in reference to partial disclosure by the state in relation to illegible x-rays (below left) tendered to Calusinski’s attorneys, and the subsequent legible x-rays (below right) that came to light post conviction.

Calusinski’s lawyers have maintained that the jury at their client’s trial were unduly prejudiced by repeated assertions that Kingan’s skull was fractured by state attorneys–a fact that was stated on no fewer than 32 occasions.

Post-conviction attorneys for Calusinski vehemently argue that their clients due process rights were violated when the state suppressed material x-rays that were favorable to her. Had the legible x-rays been produced by the state, Calusinski’s attorneys offer that the confidence of the jury to find her guilty would have been sufficiently undermined.

For a Brady violation to be tenable, Calusinski’s defense team would need to fulfill certain criteria; namely, 1./ the undisclosed evidence is favorable to the accused because it is either exculpatory or impeaching, 2./ the evidence was suppressed by the state either willfully or inadvertently, and 3./ the accused was prejudiced because the evidence is material to guilt or punishment.

Over time, the state has seemingly acquiesced in relation to the initial element needed to satisfy a Brady violation, yet their refutation of the latter 2 elements has remained steadfast–notably witnessed during Calusinski’s Oral Argument before the 2nd District Court of Appeals on April 18th, 2018.

The appeals court’s subsequent affirming of the originating trial court’s findings in Calusinski’s case, and their agreement that neither did the state willfully, or inadvertently suppress evidence of a material nature, has lead to her seeking relief from a higher jurisdiction.

Where Calusinski’s post-conviction attorneys; lead by the highly successful Kathleen Zellner, will likely be hopeful, is the willingness of the US District Court to allow them to seek clarification by independent experts. By submitting a request for a ‘Leave of Court,’ to conduct discovery under the Federal Rules of Civil Procedure, (Rule 6 specifically) Calusinski’s legal team will hope to do just that.

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Melissa Calusinski’s post-conviction attorney, Kathleen Zellner.

In reply to the state’s response to Calusinski’s habeas petition, Zellner duly notified the district court that, ‘counsel [had] met with Assistant Illinois Attorney General Richard Cenar on September 18, 2019, to discuss the possibility of conducting [such] an independent examination of the Lake County Coroner’s computer.’

In her own words, Zellner’s reasoning for this would be to firstly, ‘confirm that the Coroner’s computer never, in standard practice, exported image files as .jpg files,’ and secondly, ‘confirm that the uncompressed x-ray images were present on the Coroner’s computer when Bishop tendered the deleteriously compressed x-ray images to DeLuca (Calusinski’s trial attorney) in September 2011.

Claims of perjured testimony by Dr. Manuel Montez during the rebuttal phase of Calusinski’s trial has, according to the state been stymied. Their assertion that Calusinski’s claim had been, ‘procedurally defaulted because it was not raised before the Illinois Supreme Court.’ was not addressed within Zellner’s reply to their response.

Whether the state’s contention is validated by the district court remains to be seen, however, further recourse; dependent on the presiding court allowing Calusinski a ‘leave of court,’ would make way for potential depositions.

Much was made regarding the weight of testimony given by Montez over that of Paul Forman–Lake County Deputy Coroner at the time of Kingan’s death. Forman’s testimony during Calusinski’s evidentiary hearing in 2014, was seen by the court to be inconsistent, and ridden with errors. However, the lack of documentation–in the form of a log book– relating to Montez’s supposed examination of Kingan, raises understandably grave doubts as to its legitimacy. Along with Zellner’s request for an examination of the Lake County Coroner’s computer, could be requests for further records that would legally be required to be archived.

Further hope for Calusinski may lie in the district court’s continuance of her status hearing under advisement. While the court has not expanded upon its motives for taking further time in considering the merits of Calusinski’s petition, it is possible that a further, and indeed closer examination of the legible x-rays will be undertaken before the scheduled Feb. 28th hearing.

For a detailed backstory into Melissa Calusinski’s ongoing appeals and petitions, see past articles by CJRJ here and kindly watch ‘Blaming Melissa’ via 48Hours.


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