Melissa Calusinski’s future now lies in the hands of the Court of Appeals: For the time-being anyhow.
Calusinski’s fate, played-out over the previous nine years, has developed from her original arrest in January of 2009, followed by her subsequent conviction, nearly 3 years later. Calusinski was sentenced to 31 years for the murder of Benjamin Kingan as a result of that trial. However, the Trial Court granted an Evidentiary Hearing, in an admission that Calusinski’s case warranted further jurisprudence. The outcome of that Evidentiary Hearing affirmed the Trial Courts findings and Calusinski was left to appeal to a court of a higher jurisdiction, that being the 2nd District Appeals Court in Elgin, Illinois.
At 16 months-old, Kingans death at Minee-Saube Daycare Centre in Lake County, Illinois, heralded a chain-reaction of events that would leave Calusinski’s future in the hands of the appeals process.
Kathleen Zellner & Associates filed Melissa Calusinski’s Reply Brief on Jan. 11. This, the latest filing between the aforementioned and the State, will be the last before we hear from the Court of Appeals itself.
Kathleen Zellner, in requesting an Oral Argument on behalf of her client looks to establish dialogue, specifically pertaining to Brady violations and Perjury claims, before judges at the Appeals Court. Here lies the reasoning behind why the Court of Appeals next decision will be the most important so far in Calusinki’s appeals. Zellner will get to argue her case before different judges for the first time.
The format for the Oral Argument, if granted, allows each the State, and Calusinski’s counsel, 15 minutes to argue their case with the judges. This followed by a further, optional 5 minutes of rebuttal amounts to all the time given to each counsel.
While the judges will only spend a total of 40 minutes debating Calusinski’s case, they will no doubt have studied her case fastidiously. Most importantly though, theirs will be different minds. Zellner has a new audience, an audience with possibly less bias and almost certainly less invested in Calusinski’s fate. Zellner has a new jurisdiction to offer her arguments before.
What constitutes a Brady Violation is being disputed between both Zellner and the State. The Court of Appeals decision regarding Brady will be revealed over the coming months. Whether evidence shared in a compressed and diminished format constitutes a Brady Violation in their eyes remains to be seen, however Zellner’s first use of case-law in her Reply Brief resonates with truth. Dare I say it? Common sense too.
Did Melissa Calusinski receive a fair trial?
With legible x-rays confirming no skull fracture, would the trial have been significantly altered? Doubtlessly so. Whether the verdict would have been affected is an unfathomable question, and in lieu of this, renders it a counter–intuitive one. The death of a 16—month—old child evokes emotion within a community greater than that of an elder death. Apportioning blame to such an unthinkable death, doesn’t abate the pain, but does provide a reasoning and possible closure as to why such a tragedy could occur.
Calusinski’s confession most likely contributed to her guilty verdict more than any other single piece of evidence. Like all evidence though, it should be used alongside other corroborating evidence. Would the skull fracture testimony have held the same weight without the confession, considering the fact that the x-rays (at trial) were illegible? Of course not. The likelihood that the State would have built their case around Calusinski’s confession regardless seems to me logical. However, the trial would not have revolved around a skull fracture. The absence of injuries to Benjamin speaks volumes. With the presence of no skull fracture available to the State, there were no physical injuries apparent that corroborated Calusinski’s re-enactment of events. Zellner’s citing of cases heard before The Supreme Court, not only proffers findings from a court of higher jurisdiction, but establishes case-law relevant to what is considered a fair trial.
What constitutes a Brady Violation should not be weighed by an unknown. Would Calusinski still have been convicted had the x-rays been legible? Unknown. Was it unfair to Calusinski, that evidence existed that would have refuted both her confession, and the often mentioned skull fracture? Of course. Melissa Calusinski did not receive a fair trial. This much is clear.
Zellner’s more specific assertion that the States providing of x-rays, in an altered state constitutes a Brady Violation is far further reaching however. Basically, does providing evidence in an altered state necessitate a Brady Violation? Less than 2 weeks ago, Zellner informed me that Calusinski’s appeal could constitute a “Case of First Impression.” The way in which data is shared (in Calusinski’s case, x-rays) could lead to precedent being set in regard to its disclosure.
In Calusinski’s case, 3 x-rays of Benjamin Kingan were, and are the data in question. The fact that all x-rays saved to the County–Coroners computer were of a TIFF format, rather than that of a JPEG format, like that which were received by Calusinski’s trial counsel becomes pertinent. Of note is Doctor Euptil Choi’s (Coroner for Lake County, that performed Bejamin Kingan’s autopsy) testimony, that the x-rays were ineligible during trial. It is indisputable that the x-rays were condensed in file size. Who made the decision to do so, and at what time is debatable however.
The State Prosecution were afforded the Kingan x-rays shortly before Calusinski’s trial in 2011. Choi’s testimony that x-rays were ineligible indicates that they were so, long before the State had access to them. This only rings true however under the proviso that Choi looked at them soon after they were taken. Still, the question is begged: Why take an x-ray if you’re not going to use it?
“I look again after the autopsy” suggests that the x-rays were viewed by Choi before the State Prosecutors had access to them, and if his testimony is to be believed, offers that the x-rays/images had been altered before he saw them. Either way the fact remains: Legible x-rays have come to light since, that confirm no skull fracture. The point-in-case being: If the jury had been provided legible x-rays showing no skull fracture, the State clearly would not have utilised testimony promoting such a theory.
Melissa Calusinski’s case, like so many others, deals with a narrative at its very heart. A state driven narrative. From it’s beginnings, Benjamin Kingan’s death on January. 14, 2009, followed by Calusinski’s arrest 2 days later, the narrative evolved. Choi’s initial conclusion that Kingan’s death had been caused by blunt—force—trauma, with injuries comparable to falling from a 3–storey building fired that narrative. What followed was akin to a modern day witch–hunt. Make the evidence fit. More importantly, if the evidence doesn’t fit, don’t use it. Or at the very least, obscure it.
In Calusinski’s case, like most, there was time for the narrative to play out. Considering that between her arrest, and the State Prosecution’s disclosure of x-rays to Calusinski’s defence counsel more than 2 and a half years had passed. Time to assemble a trial–strategy for the State was in abundance.
The question remains however: Will a new set of eyes, ears and minds offer Melissa Calusinski an avenue for freedom? If the Appeals Court finds that Calusinski was not afforded a fair trial, where does that leave her? The Appeals Court is under no obligation to hear Oral Arguments. It may rule either way solely from the Appellant’s and Appellee’s Briefs alone. While this is unlikely, if the Court of Appeals were to rule that Calusinski did indeed receive an unfair trial, what would the ramifications be? A re–trial? Exoneration perhaps?
Viewed from the opposite side, the Appeals Court could side with the views of the Trial Court and the State and affirm the original ruling. Either way an appeal will follow from either side in all likelihood. The Supreme Court of Illinois would offer the next step up the ladder in terms of jurisdiction. However, I get ahead of myself.
An Oral Argument taking place for Calusinski is likely. They are favoured. The opportunity for judges to be able to debate directly with both the State and Defence Counsel alike, is welcomed. And so it should be too. What is contained within briefs is a one-way-street. The opportunity to be able to directly debate in real—time via Oral Arguments allows for pertinent questions from the court itself. There will be no hiding behind a brief, so to speak.
The fact that this likely Oral Argument will take place over the course of approximately 40 minutes, sits awkwardly next to a justice system that infamously moves painfully slowly. Decisions made behind the scenes take longer. Time-frames are notoriously difficult to predict as to when their rulings will be made.
As for now, we wait for a decision from the Court of Appeals
*Update: Melissa Calusinski was granted her Oral Argument—which took place on April. 18, 2018. For an analysis of the Oral Argument click here