The 2nd District Court of Appeals yesterday granted Oral Argument in the case of Melissa Calusinski. Once again, Calusinski will have her day in court.
Arguments are scheduled for 9.30am on April. 18, in what will be the second case heard that day. Representing Calusinski will be Kathleen Zellner, aided by Douglas Johnson. Due to the brevity of Oral Argument and its nature of two-way dialogue between the 3 judges and conflicting parties, few key issues regarding Calusinski’s original trial and subsequent discoveries are likely to be heard.
Zellner’s original request for Oral argument, and more specifically her Reply Brief in answer to the state’s response are likely to prove prevalent.
Zellner’s Reply Brief raised 2 key issues for consideration by the Court of Appeals:
The trial court improperly denied defendants claim under Brady V. Maryland because the x-rays that form the basis of the claim were withheld from the defence before trial.
The fact that a legible set of x-rays would have clearly been of exculpatory value to Calusinski would be hard to deny for even the most hard-nosed of detractors to Calusinski’s innocence. More pertinently, the fact that absolutely no evidence was found on the County Coroners computer that any files were saved in a JPEG format—a condensed file—lead to the argument that evidence was duly withheld. It is important to remember that whether this evidence was withheld intentionally or not, is not of any relevance. What is of relevance is whether Calusinski was afforded a fair trial.
Of importance will be Zellner’s citing of existing case law that establishes a similar lack of disclosure. Her citing of, United States v. Yevakpor and United States v. Stellato, raises issues of ‘cherry-picking’ select parts of evidence that would either aid the prosecution in their aim to convict, or disparage the appellant from using such material to aid their defence.
Perhaps of more importance though will be the assertion that applicable case law does not exist. While benefactors of Calusinski will understandably only have her best interests at heart, Zellner’s preponderance for addressing pitfalls in law that affect future appellants is likely of paramount importance. By raising the issue of ‘First Impression’ in relation to Calusinski’s incomplete disclosure of underlying data, the justices of the court will be asked to consider issues that possibly test their jurisdiction. Oral Argument is not designed for judges to be the only ones who ask questions. Questions should be asked of them too.
The trial court improperly rejected defendant’s claim that her conviction rested on perjured testimony.
While Dr. Manuel Montez’s testimony during the rebuttal stage of trial is understandably hotly disputed, it’s likely that the trial court’s conduct during Calusinski’s evidentiary hearing will be raised too—in particular their assertion of expertise over that of Dr. Robert Zimmerman.
While claims of perjured testimony abound regarding Montez, the trial courts inexplicable use of unfounded knowledge used to dismiss/ignore Zimmerman’s testimony is likely to affirm Zellner’s claims that the trial court were manifestly erroneous in their summation at Calusinski’s evidentiary hearing.
As mentioned before, Oral Arguments are brief in nature. Expect Zellner to ask as many questions of the 3 judges in attendance, as they ask of her.
By legal standards—expect fireworks.
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