Melissa Calusinski’s post-conviction attorney Kathleen Zellner filed her clients Writ of Habeas Corpus this past Wednesday, March. 27th.
Calusinski, currently 10 years into a 31 year sentence for the aggravated battery, and first degree murder of 16-momth-old toddler Benjamin Kingan, will be seeking fresh eyes and minds to look into a case that began with a now much publicized misdiagnosis.
Former Lake County Coroner, Dr. Eupil Choi’s assessment that Kingan had suffered a skull fracture resulting in an acute subdural hematoma, caused by blunt force trauma akin to that of falling from a 3 storey building, began a process by which Calusinski; 22-years-old at the time of Kingan’s death, was interrogated by police for 9 hours, during which she ultimately confessed to throwing Kingan to the floor in exasperation.
Due in part to Calusinski’s intellect—IQ scores for Calusinski scored below that of average, and substantially so in relation to her verbal IQ—and officer’s repeated intimidation—despite more than 80 denials by Calusinski—grave shadows of doubt have been cast over the validity of her 2009 confession. Of unquestionably greater importance came the 2014 revelation; via readable x-rays, that Kingan had in fact not suffered a skull fracture, and that he had been suffering from a chronic—old injury—rather than acute subdural hematoma.
Calusinski’s journey from her initial arrest in the January of 2009, through to her trial and conviction in late 2011, and subsequent plethora of appeals, has ultimately lead to her appeal at a federal level after an evidentiary hearing and 2 denials for relief by the 2nd District Court of Appeals in Elgin, Illinois.
Via her Habeas Petition Calusinski’s attorney, Kathleen Zellner has set about detailing the unlawfulness of her clients conviction, in large part by addressing the fundamental and indisputable differences in what is known now, as to that at time of Calusinski’s original trail.
The ‘junk science’, including the use of sight, touch and photographs to offer an assessment as to Kingan’s condition, not only lead to Choi’s misdiagnosis, but lead to further prejudicial testimony given by medical experts during Calusinski’s trial from Drs. Jan Leestma and Jordan Greenbaum. While x-rays were taken at the time of Kingan’s autopsy, the resulting darkened and unreadable images offered to both state and defense attorneys shortly before Calusinski’s trial, rendered them unusable in refuting Choi’s and subsequent experts testimonies.
To compound matters, the calling of Dr. Manuel Montez as a rebuttal witness for the state only furthered the accepted notion during trial that Kingan had suffered a skull fracture. Montez’s claims that he examined Kingan, and felt a through-and-through fracture in the toddler’s skull, was not only refuted by Paul Forman—Lake County Deputy Coroner at the time of Kingan’s autopsy—but further by a complete lack of records that he did so.
Upon the discovery of legible x-rays some 3 years after her conviction, renowned paediatric neuroradiologist Dr. Robert Zimmerman, testified at Calusinsk’s evidentiary hearing in 2016 that the legible x-rays showed no such skull fracture. Further to Zimmerman’s testimony, the state chose not to offer their own expert to counter Zimmerman’s testimony.
Forward some 2 years, and the citing by Justice Kathryn Zenoff of the 2nd District Court of Appeals in denying Calusinski relief that, “[f]or for Dr. Zimmerman to be correct, “four other [trial] experts have to be wrong. Drs. Choi and Montez both saw the fracture with their naked eyes, and Dr. Montez felt and manipulated it without gloves. Drs. Greenbaum and Leestma saw the fracture in the autopsy photographs,” not only flies in the face of conventional logic but hints at something darker.
A solid conviction can not possibly be made when the primary building blocks that it is built upon are demonstrably false. Zenoff’s mind-boggling assertion that Drs. Leestma, Greenbaum and Choi’s—discounting Montez due to there being no evidence of him examining Kingan save for his word—testimony would not have changed if they had been given reliable evidence of no skull fracture, firstly demonstrates an incorrect presumption—backed up by the state not wishing to dispute Zimmerman’s assessment—but more importantly proffers that she has the expertise to make such a assertion. Zenoff’s statement that ‘there is clearly something there.’ when looking at photographs of Kingan’s purported fracture only further illustrates her lack of understanding. There was never any dispute that ‘something’ was there. The issue her is that was repeatedly asserted during trial as being there wasn’t. Namely a skull fracture. When convictions are built upon faulty foundations, they simply must be torn down.
Calusinski’s Habeas Petiton will be reviewed by a federal judge within the United States District Court for the Northern District of Illinois.
The much publicized case of Brendan Dassey, which has been detailed in the hit docu-series ‘Making A Murderer’ draws many parallels with that of Calusinski’s. False/Coerced confessions aside, both cases fall under the jurisdiction of the 7th Circuit Court of Appeals.
Dassey’s Habeas Petition was reviewed by Federal Magistrate William Duffin, with his conviction overturned during the summer of 2016. Further appeals by the state of Wisconsin however, saw Duffin’s ruling again overturned by a 4-3 vote via an en banc rehearing some 16 months later, and with SCOTUS declining to hear his case, Dassey must either file a new appeal with the trial court or seek clemency.
During the state’s appeal[s] of Duffin’s ruling, Dassey was not granted release while the legal process played out, and likewise in Calusinski’s case, if a ruling was granted in her favor regarding her petition, the same problems may ensue.
For the time being, such possibilities should likely be kept in check, as the coming months will decide on her next course of action. With that being said, the likelihood that the state of Illinois would not seek to appeal such an overturning of Calusinski’s conviction would be unlikely.
Perhaps of greater significance could be the differences between the two cases. For Dassey— apart from a seemingly clear ineffective counsel—his coerced confession was what Duffin overturned his conviction by. In Calusinski’s case, although a coerced confession followed, the primary unlawful factor was, and is medical malpractice. Dassey’s petition relied upon what could be argued as a less scientific, and consequently more subjective form of argument in relation to his confession. By contrast, Calusinski’s petition weighs heavily in favor of science; and the way in which it was, and more pertinently wasn’t applied.
The day following Zellner’s Habeas Petition being filed saw Paul Calusinski; Melissa’s father, host a discussion on his daughters FB page, Official Justice for Melissa Calusinski.
Of particular note were live conversations with Lake County Deputy Coroner, at the time of Kingan’s death, Paul Forman, and subsequent Lake County Coroner from 2012-2016, Dr. Thomas Rudd.
The discussion, in it’s entirety is linked below, and is especially worth listening to for its portrayal of a justice system that is evidently loathe to have its prior indiscretions exposed, and duly rectified.
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