Calusinski appeal denied by IL Supreme Court

Apparently, having the medical examiner state that your conviction was based on a misunderstanding of the evidence is not enough to keep you from serving 31 years in prison for a “murder” that you did not commit.  From the Chicago Sun-Times:

The Illinois Supreme Court recently ruled it would not take up the case of a Lincolnshire day care worker who was sentenced to 31 years in prison for the death of a 16-month-old boy in 2009…

But the attorney for Melissa Calusinski, who was convicted of killing Deerfield toddler Benjamin Kingan on Jan. 14, 2009, when she became frustrated and hurled him to the floor at the Minee Subee day care center, said she will continue to push for a new trial.

Attorney Kathleen Zellner said an expert witness has revised his conclusion, since the original autopsy was completed, to now include evidence the boy suffered another injury prior to the day he died.

Lake County Coroner Thomas Rudd reopened the investigation and determined there was a prior injury. He made his decision after reviewing the trial testimony, obtaining new evidence and analyzing Forensic Pathologist Eupil Choi’s findings.

Choi stated in a sworn affidavit that the boy “had suffered an old injury that pre-dated Jan. 14, 2009,” the date of his death.

The affidavit has been a key part of the defense’s argument for a new trial.

Zellner called attempts to get the case before the high court a long shot, saying, “They deny a petition for appeal about 98 percent of the time.”

But Zellner is still pressing on with a post-conviction petition in Lake County Circuit Court.

“It’s a work in progress,” she said.

New Lake County Coroner says Calusinski verdict inconsistent with medical evidence

I have written a few blog posts concerning my doubts about Melissa Calusinski’s conviction for the first degree murder of 16 month old Benjamin Kingan.  (See here for details).  Now, the new Lake County Coroner has expressed his own doubts, stating that if the jury understood the medical evidence, they would not have convicted her.

You can click here to see Larry Yellen’s interview with the coroner.

From Fox32:

A former daycare worker convicted of murdering a child in her care is hoping that questions raised by the Lake County coroner will help set her free.

In a rare interview about the case, the coroner told FOX 32’s Larry Yellen why he thinks the woman was wrongly convicted.

“I was stunned. It was like a light bulb in a dark room,” said Doctor Thomas Rudd.

Dr. Rudd said when he took office in 2012, he reviewed the autopsy that had been used to convict daycare worker Melissa Calusinski and he was shocked that she was found guilty.

“Did the jury really understand the medical evidence? Okay, if they did, they wouldn’t have convicted her,” Dr. Rudd said.

The Carpentersville woman was convicted three years ago and sentenced to 31 years in prison for the 2009 murder of 16-month-old Ben Kingan at the Minee Subee Daycare Center in Lincolnshire. During a videotaped police interrogation, prosecutors said she demonstrated how she threw the child toward the floor. But the coroner said his review of slides from the autopsy suggests the child died due to a head injury sustained in October 2008, three months before the Calusinski incident.

“We need to find out what happened to this child beforehand. It’s the original injury in October that is the demise of this patient,” Dr. Rudd said.

Lake County State’s Attorney Mike Nerheim said, ”This is a child that sadly went from normal to dead in a matter of minutes.”

In his first broadcast interview regarding the Calusinski case, Nerheim said there was no evidence that an earlier injury caused the death. He also said the coroner’s concerns about an earlier injury were raised by the defense at trial, and rejected by the jury.

“Even if there was a prior injury, if that injury was aggravated by her conduct, she is still guilty of murder,” Nerheim said.

Doctor Rudd said the jury heard from paid experts for the defense, not his own unbiased opinion. He said the state’s attorney should take another look at the case.

“He knows there’s a prior injury. Why isn’t he investigating what happened?” Dr. Rudd added.

Last winter, an appellate court upheld Calusinski ‘s conviction. The Illinois Supreme Court is expected to decide within the next few weeks whether to hear the case.

Breaking: New Report Raises Questions about Calusinski conviction

Over a year and a half ago, I wrote a blog post about why I was deeply troubled by Melissa Calusinki’s murder conviction (and 31 year sentence). She was the day care worker who allegedly picked up and threw a 16 month old boy on his head, causing his death. As I wrote last February, the evidence against her was exceedingly weak and the facts surrounding her “confession” were very troubling (the police interrogated her for 10 hours, she had a 74 IQ and the extent of her confession was to say “yeah” in response to the detective’s narrative of what he thought had happened).

Today comes news that the medical evidence against Calusinski was wrong; and that State’s Attorney Mike Nerheim doesn’t think that the collapse of the case matters:

An expert whose testimony helped convict a woman of the murder of a 16-month-old toddler in her care at a Lincolnshire day care is now admitting he “missed” a pre-existing head injury — a development the woman’s attorneys are arguing should lead to a new trial.

In a surprising revelation, forensic pathologist Eupil Choi said in a sworn affidavit that the boy, Benjamin Kingan, “had suffered an old injury that pre-dated January 14, 2009,” the date of the boy’s death.

The affidavit is expected to be a key part of the legal ammunition that attorneys for Melissa Calusinski will use to try to get her a new trial. Calusinski, who lived in Carpentersville, was convicted of the little boy’s murder and in February 2012 was sentenced to 31 years in prison.

“We believe there is significant new evidence,” said one of Calusinski’s attorneys, Kathleen Zellner. “We are consulting with a number of experts and we are investigating every aspect of the evidence that was used to convict Melissa, including the viability of the medical evidence.”

What’s more, Choi’s reversal is supported by two other doctors who have reviewed the case — the newly elected Lake County coroner and the former Cook County Medical Examiner.

But Calusinski’s attorneys are in for a courtroom fight.

Lake County’s top prosecutor said that even if the new findings of Choi are correct, Calusinski should still be held accountable for Benjamin’s death if her actions, at the now closed Minee Subee in the Park day care center, exacerbated his injury.

Lake County State’s Attorney Mike Nerheim, elected to the job in 2012, has worked to restore the reputation of an office beset with several wrongful convictions, a record that has drawn national attention.

But in Calusinski’s case, Nerheim said he reviewed the new findings and believe they simply rehash the defense’s arguments at trial. Nerheim said he has found nothing to give him pause about the guilty verdict.

For Calusinski, who has been behind bars since her arrest in January 2009, the new evidence angered her, then gave her hope.

In an exclusive interview at the Logan Correctional Center in downstate Lincoln, Calusinski, now 26, said she was “shocked” when told about Choi’s new opinion. Choi did not return a message for comment Friday.

“I was very angry,” Calusinski said.

Choi’s reversal came after Lake County Coroner Thomas Rudd, who took office in December 2012, reopened Benjamin’s case early this year after speaking with Calusinski’s father and one of her attorneys, Paul DeLuca.

Rudd said he read the trial testimony, reviewed Choi’s findings, looked at the original slides, had new ones made and found the existence of a prior injury.

Rudd then asked former Cook County Medical Examiner Nancy Jones to review the materials. Jones wrote that “at the time of his death, Ben Kingan had a well-developed, organizing sub-dural membrane (an old collection of bleeding on the brain) that was missed by Dr. Choi during his initial postmortem examination.”

Following Jones’ review, Rudd delivered the new findings to Nerheim on May 8, but Nerheim did nothing.

Earlier this year, DeLuca asked Nerheim to put Calusinski’s case before the new board Nerheim formed to re

view cases in which a defendant’s guilt was is in question. Nerheim declined.

Nerheim formed the panel shortly after being elected in 2012, to restore the reputation of the office, which had been tarnished during the final years of Mike Waller’s years as Lake County state’s attorney. Four felony cases — Juan Rivera, Jerry Hobbs, Bennie Starks and James Edwards — had collapsed after DNA evidence suggested each man’s innocence. The men spent about 60 years total behind bars before being exonerated.

But Nerheim saw no reason to reopen Calusinski’s case.

On the day he died, Benjamin went from “emotionally fine to dead,” Nerheim noted. If Benjamin had a pre-existing head injury, he would have had a “logical decrease in functioning over time,” which was not seen, Nerheim said.

Even if there was a pre-existing injury, if Calusinski’s actions did something to exacerbate Benjamin’s injury, she should still be held legally responsible for his death, the prosecutor argued.

With Nerheim’s seeing no reason to act, Rudd asked Choi to look at Jones’ findings. Choi concurred with Jones, adding that “at the time of his death, Benjamin Kingan had suffered from a head injury prior to January 14, 2009, as evidenced by the well-developed, organizing subdural membrane present.”

It was Choi’s original findings at the autopsy that led police to question day care workers about their role in the boy’s death.

I have to admit that I am disturbed that State’s Attorney Nerheim did not refer this case to his review unit. This case was already a classic example of a wrongful conviction. It was supported only by a very questionable confession and questionable medical evidence. Now the medical evidence is thoroughly discredited. Up until this point, I have been very impressed by Mr. Nerheim’s willingness to put aside emotions and politics in order to make sure that each case gets a thorough review. Hopefully, he will reconsider his decision and give this case a second look.

Similarly, Cook County residents should be very concerned about this story in which a State’s Attorney resigned after she was demoted for dropping a case which (she claims) even her bosses agreed was “unprovable.” Apparently, they are of the belief that a case should be prosecuted regardless of the facts, and despite the possibility that an innocent person might be convicted, because the story received media attention and/or Anita Alvarez feels the need to show that she is tough on crime.

Melissa Calusinski’s Motion for New Trial Denied

Today Judge Daniel Shanes of Lake County, IL denied Melissa Calusinski’s attorney’s motion for a new trial.

In their Motion, her attorneys argued that Dr. Manny Montez, who testified for the prosecution, made false statements about his lack of board certification by the American Board of Pathology.  According to Ruth Fuller for the Chicago Tribune and Trib Local,

During his testimony in Melissa Calusinski’s trial in November, Dr. Manny Montez, who was consulted during the boy’s autopsy, said he was not certified by the American Board of Pathology because “I have not sat before the board for the test.”

According to records obtained through a subpoena, which was read in Lake County court Thursday, Montez took but did not pass the anatomic portion of the certification exam in September 2001. But he did not take a forensic sub-specialty portion of the exam.

Calusinski’s attorney, Paul DeLuca, said Montez was not being truthful when he said he had not sat for the exam, thus denying his client her right to a fair trial.

Prosecutors argued that Montez did not misrepresent his qualifications and that the outcome would have been the same even if the jury knew he failed the board test.

“He never claimed to be board-certified,” Assistant State’s Attorney Christen Bishop said. “He said, ‘I never sat for the test,’ singular. He didn’t lie. This fact would mean nothing to the jury.”

Montez, who has a contract to perform autopsies for the Lake County coroner, could not immediately be reached for comment…

Thursday, Judge Daniel Shanes agreed with the prosecution while denying the defense’s request for a new trial.

“I do not find that Dr. Montez lied,” Shanes said, adding he didn’t believe Montez’s testimony was enough to sway the outcome of the trial.

“This is a non-issue,” he said. “It would have had the effect of an insect hurtling itself down on an 18-wheeler while it is traveling down the highway. Shakespeare said it better when he entitled his play, ‘Much Ado About Nothing.’”

Montez performs “a significant amount” of autopsies for Lake County, Yancey said, and Montez has testified in several recent high-profile trials. According to court records, he charged the county $800 for two hours of testimony in the trial of Marni Yang, who was convicted of killing Rhoni Reuter while she was pregnant with the child of former Chicago Bears player Shaun Gayle.

The denial of post-trial motions is common, but it gives the parties an opportunity to present issues to the trial judge before the case is appealed to a higher court.

Calusinski’s lawyers have already indicated that they plan to appeal her conviction and sentence.

A real life demonstration of why you should never speak to police

Link: Melissa Calusinski declares her innocence.

As I was reading the Chicago Tribune today, I saw an article that touched upon two of my recent blog posts — the one about Melissa Calusinksi, and the one where I linked to Professor James Duane’s lecture about why you should never speak to the police.

Professor Duane used the following example (slightly altered by me): Lets say the police are “investigating” the murder of John Doe in Highwood last Sunday and want to talk to you.

You agree, since you have nothing to hide.

You say, “I hated that guy, but I didn’t do it.” Now, the police will say you admitted hating the victim. You have a motive.

You add, “I was in Highwood, but I didn’t do it.” Now, the police will say that you had the opportunity and the motive to commit the crime.

Or lets say, you say “I was in Sauk Village at the time, I wasn’t anywhere near there.” But you don’t have any definitive proof besides your mom’s word for it. Now, lets say the police find a witness who (mistakenly) confirms that you were in Highwood that night. Now, your statement can be used to show that you made a false statement (even though it was true!).

And so on.

Now, read Calusinski’s account to the Tribune:

In Calusinski’s case, she had been interrogated for more than six hours before offering the first hint of culpability in the boy’s death. Earlier in the questioning, she had suggested Benjamin might have injured himself because of his propensity to throw himself onto the ground during tantrums. Later, she offered that he might have hit his head on a chair when he accidentally slipped from her arms.

Over those hours, Calusinski’s interrogators — Round Lake Park police Chief George Filenko and Highland Park police Detective Sean Curran — tried different tactics to elicit her confession, ranging from telling her that they were sure the boy’s death was accidental, to telling her they were sure it was intentional.

Eventually, she agreed with a “yeah,” after Curran suggested she had intentionally thrown Benjamin to the floor. Later, she recounted that version of events back to the investigators and used a doll to demonstrate how she mishandled the boy.

During her jailhouse interview this week, though, Calusinski said that she finally confessed because she was “very scared.” She also said she was grief-stricken over Benjamin’s death and was lacking sleep and food.

“I wanted to get out of there. … I was so isolated,” said Calusinski, who added she’s never been in trouble before besides a parking ticket. “I thought, ‘I’ll tell them what they wanted to hear so we can all go home.’ I didn’t think about jail. They made it clear I was going home.”

After the confession, when she was told she was being charged, Calusinski said she immediately protested and claimed her innocence.

“I was like, ‘You guys are making a huge mistake, I did nothing to him,'” she said. “They ignored me.”

Calusinski said she’s always been obedient and did what she was told. She said that might have led her to agree with police when they told her she was involved in Benjamin’s death.

She also admits that learning was never easy for her and she was often the brunt of teasing and bullying because of it.

If you have seen all of Professor Duane’s presentation, and Detective Bruch’s “rebuttal,” you will recognize these methods.

Remember, that Melissa was 22 years old, and had an IQ of 74. The Tribune describes her as petite. This is in addition to the new information that she has had a history of being bullied.

Six hours of interrogation don’t get the police to stop. So, Melissa tries to “help” them by providing explanations for Benjamin’s death — he had tantrums where he hit his head; he hit his head on a chair. To the police, these “explanations” are just admissions that Melissa had some involvement in Benjamin’s death.

The police try to get her to agree that she caused the death, but it was accidental. This will get her to admit being at fault.

They also tell her that they know that she intentionally murdered Benjamin.

They finally get her to agree to their theory that she intentionally threw Benjamin. She now says that she only agreed because she felt that if she agreed, she would get to go home. She says that as soon as she was informed that she was being charged with murder, she recanted. Too late.

As I said in my post last week, outside of the confession and the dead toddler, there doesn’t seem to be hardly an evidence to show that Benjamin was intentionally killed. Outside of the confession, it would appear that he either died as the result of a momentary, stress induced horrible act by Melissa (which would amount to manslaughter, not first degree murder) or he died as the result of injuries caused by something else entirely (such as banging his head too hard on the floor).

What I do know, however, is that Professor Duane had it correct: Don’t talk to the police, even if you are 100% innocent.

I am deeply troubled by the Calusinski sentence

Today, 25 year old former day-care worker Melissa Calusinski was sentenced to 31 years for the first-degree murder of 16 month old Benjamin Kingan. This strikes me as a great injustice.

I must of course preface my remarks by stating that I was not present at the trial, and have no knowledge of the case beyond what has been reported in the media.

For those of you who don’t know, Ms. Calusinski was working at the Minee Subee day care center in January, 2009. She was a junior level day care worker. The allegations are that Ms. Calusinski became frustrated with Benjamin and threw him to the ground. The boy picked up his pacifier and blanket, then sat in his favorite bouncy seat until he went unconscious and he died shortly thereafter. In the room was his twin sister.

This case, with its allegation of the horrific murder of a defenseless toddler by a uncaring day care worker is heartbreaking. As a parent who lives near the day care center, I was horrified by this story when it was first reported, and followed it in the newspapers.

So why am I troubled by the verdict and sentence?

The evidence against Melissa Calusinki mainly consisted of her own confession, as well as the medical testimony that Benjamin died of a skull fracture. There were no eyewitnesses.

First of all, the facts surrounding Melissa’s confession raise significant concerns to anyone familiar with false confessions. She has an IQ of 74. She did not have a lawyer present. There has been all sorts of testimony and evidence indicating that she is a very simple person, easily confused and pressured. Her interrogation lasted for 10 hours. She did not offer a detailed explanation; instead the detectives put words in her mouth. The officer asked if she hurt Benjamin after being frustrated and she said “Yeah.” After her confession, she asked to see her puppy.

There was evidence at the trial that Benjamin had bruises on his body days before his death. He had been sick and was vomiting during this time. According to a co-worker, on the day of Benjamin’s death, he had a violent tantrum and threw his head back onto the ground. There was medical testimony that raised questions about the coroner’s conclusions about Benjamin’s death.

There was also testimony that Melissa was a sweet person, not prone to anger or violence. There has also been reports that the day care center was understaffed, had previous code violations, and that Melissa was put in a situation way to stressful for anyone, let alone a low IQ 22 year old.

In my opinion, the evidence did not support first degree murder. If anything, it supported a lesser charge of manslaughter, based upon the theory that Melissa was overwhelmed and unable to handle Benjamin’s tantrum, and reacted in a manner that unintentionally, but recklessly, caused his death.

If this was the case, it would be hard to see a sentence of more than 8 years.

And that’s the worst case scenario.

Although I am not sure what happened at Minee Subee that day, it is ultimately the prosecution’s burden of proof to show, beyond a reasonable doubt that the defendant intentionally battered Benjamin Kingan with the intent of causing great bodily harm that lead to his death. I cannot place much faith in a confession that comes out only after hours and hours of high pressure interrogation, when the defendant is an intellectually challenged young person who likely cannot withstand any pressure and will say anything to get out (she thought) of that room. Especially when it appears that the detectives put the words into her mouth and got her to agree.

Furthermore, the State’s medical testimony was challenged by the testimony of the other day-care workers who saw Benjamin’s bruises and sickness consistent with prior head injury, the tantrum he had where he threw his head onto the ground, and the many questions raised at trial about the accuracy of the coroner’s opinion. Given that, I believe that the evidence was simply not there. Which is not to say that Melissa is innocent — just that the evidence is questionable, and in such a case, when the state fails to meet is burden of proof beyond a reasonable doubt, the defendant wins.

Melissa maintains her innocence, and her attorneys, including Kathleen Zellner, will appeal her conviction and sentence.