Judge denies new trial motion for Calusinski

Gregory Harutunian for Chronicle Media
Paul Calusinski addresses reporters outside the Waukegan court annex building, following the Sept. 30 decision which denied a new trial for his daughter, Melissa. (Photo by Gregory Harutunian/for Chronicle Media)

Paul Calusinski addresses reporters outside the Waukegan court annex building, following the Sept. 30 decision which denied a new trial for his daughter, Melissa. (Photo by Gregory Harutunian/for Chronicle Media)

“It wasn’t totally unexpected,” said Paul Calusinski.

The response came following a decision by Lake County Circuit Court Judge Daniel Shanes to deny a motion for relief on the murder conviction of Melissa Calusinski, which would have led to a new trial, based on recently disclosed evidence and retracted statements. The Sept. 30 action was immediately appealed by defense attorney Kathleen Zellner and will now be set for an appellate hearing at the 2nd District Court in Elgin.

“This is Lake County … denying the medical evidence … this is 2016, not 1860,” said Zellner, during a press conference following the court rendering. “This is what it is, and we’re told to go away. This is willful ignorance to Melissa Calusinski relief.  This case is beyond stupid, and Lake County always does things the hard way.”

“It is obstinate and this county has paid millions in wrongful convictions,” she said. “They paid a settlement to Juan Rivera, for more than $20 million, even going so far to pour the victim’s blood on his shoes, which weren’t even manufactured at the time of the murder he was accused of. What’s great is that we have metadata on the .jpeg images that were compressed and given to the defense at the original trials, from a larger .tiff landscape.”

Judge Shanes outlined his decision, with a chronological account of the two trials and subsequent post-conviction hearings on newly discovered evidence including clear and legible X-rays of the child’s head, and contradictory testimony.

“Based on fact, that the 2009 autopsy had only three images, and in June 2015, (Lake County Coroner) Dr. Thomas Rudd made the spectacular statement that new X-rays were pulled up, with one (additional) saved.

“The resulting flurry of phone calls between Rudd, Ms. Zellner, and Paul Calusinski led to the spectacular statement that Rudd had located new X-rays showing no skull fracture,” he said. “There never was a second set of X-rays, and Paul Calsuisnki loves his daughter that he would do anything and view it through those lenses. Without that second set, the defense case falls like a house of cards. The defense must show evidence that undermines the confidence of the verdict.

“It falls far short. At both trials, both sides presented their evidence, and she was found guilty … either she didn’t do it or she did it recklessly. This amounts to Monday morning quarterbacking … if it works, you’re a genius, if it doesn’t, you’re not. Under the law, the constitutional threshold for relief is not supportive of the evidence and the motion is denied,” he concluded.

Melissa Calusinski was found guilty in 2011, and through a second trial, in the death of 18-month-old Benjamin Kingan and sentenced to 31 years at Lincoln’s Logan Correctional Center. The cause of death was determined to be a skull fracture, attested to by the attending autopsy physician, Dr. Euphi Choi, and Dr. Manuel Montez, whom stated he had “manipulated the skull fracture,’ and had the blood tissue on his hands.

Calusinski was largely convicted on a 9 ½-hour videotaped confession, now viewed as coerced by interrogators, in admitting that she “slammed” the child down in a fit of frustration, despite denying she harmed the child more than 75 times. The Kingan family has attended all the hearings including the Sept. 30 determination and refused to comment.

Contradictory testimony by former deputy coroner Paul Forman implied that that Montez was handed Dr. Choi’s autopsy notes for review, by then county coroner Dr. Richard Keller, and never viewed the body. Other testimony indicated that the skull cap had been wiped clean, and the brain dissected which cast doubt on Montez’s statements.

Shanes noted an amended petition seeking perjury charges against Montez, filed by the defense, “was received on the new material evidence, and it is denied.”

The other issue revolved around the initial X-rays given to the original defense teams, led by Paul De Luca, as being compressed .jpeg files of lower pixel count, as identified by the metadata in the property box. The “Tiger View,” a stepped-down version of Adobe Photoshop, had problems with initialization by both prosecution and defense attorneys. Trial X-rays were not legible, whereas Forman, who took the images, testified they were clear and readable.

“There is no skull fracture, that is the key, in a series of three X-rays that the defense could not interpret,” said Rudd, speaking at the press conference. “The second set shows this, and the light-bulb shape displayed internal bleeding. My conclusion, Dr. Choi’s work was malpractice, he missed the internal bleeding from pre-existing injury at the skull’s base.

“The price I paid? The judge even admonished me as using this case for a political basis,” he said.

The defense has also stipulated that the child died due to a subdural hematoma, exacerbated by a chronic head-banging condition, substantiated by the histology slides and photos of the child’s dissected brain. Dr. Robert Allan Zimmerman also testified that it was impossible to view a linear skull fracture in a clinical setting and not be seen on an X-ray.

“During closing arguments, the prosecution said that the skull fracture is immaterial, and for them to say that is ludicrous,” said Zellner. “It has been mentioned 273 times. We have the evidence, and for them to challenge Dr. Rudd, and Paul Calusinski is a lot of static, white noise.”