Melissa Calusinski sits during the April 18 evidentiary hearing in the Lake County Courthouse. (Photo courtesy of Chicago Tribune pool)

The 2^nd Appellate Court in Elgin has denied the possibility of a retrial for Melissa Calusinski, convicted in the 2009 death of an 18-month-old toddler, stating that new evidence presented at an April 18 hearing was available to defense attorneys throughout her initial two jury trials. The three-judge panel issued the determination June 12, and left only several options for the Carpentersville native, still serving a 31-year sentence.

In a statement, defense attorney Kathleen Zellner said that the new evidence was not available during the initial trials, and would have undermined the credibility of the verdict. It was also indicated that an appeal would be filed next month with the Illinois State Supreme Court, which Zellner had said would be the next step, if denied, during an earlier press conference. Her office did not respond to requests for further comment.

“At this point, they have a 30-day window to file a motion with the appellate court, petitioning them to reconsider their decision,” said Matthew Stanton, an adjunct professor of constitutional law at Chicago Kent School of Law. “Beyond that, the only legal remedies are filing an appeal with either the State Supreme Court, or the federal Supreme Court.”

Calusinski was accused of throwing down toddler Benjamin Kingan, at the Minee Subee Day-Care Center, causing a skull fracture that led to his death. Her conviction resulted from a taped nine-hour confession, and allegedly faulty medical data where the fracture was later proven to be suture marks. Lake County Circuit Court Judge Daniel Shanes presided over an evidentiary hearing in mid-2016 and denied a new trial request later that September, through a 53-page statement that also maintained the evidence was not new.

The 32-page appellate decision, obtained by the Chronicle, was delivered by Judge Kathryn Zenoff, and with concurrence by fellow judges Michael Burke and Mary Shostok-Seminara. It held that there was no violation “where the arguable undisclosed evidence was not material; the trial court’s finding that the state did not knowingly present perjured testimony at trial was not against the manifest weight of the evidence.”

It affirmed Shanes’ denial of Calusinski’s amended post-conviction petition.

Part of the new evidence revolved around prosecutors withholding an exculpatory autopsy X-ray showing there was no skull fracture, and resulted in the 2011 guilty verdict. Defense attorneys argued that a .TIFF format copy of the pictures was discovered in the county coroner’s office, when the only previous pictures were of diminished quality in .JPEG format supplied along with questionable software, Tigerview, to open it.

Perjury of the part of forensic pathologist, Dr. Manuel Montez, has also been alleged in that his testimony stated he physically “manipulated” the fracture. It was refuted by Paul Foreman, the deputy coroner who took the X-rays, who said he had wiped the skull clean before Montez saw it, and that Montez was given the report to write up by then-county coroner Dr. Richard Keller.

The issue of the X-rays and different formats were addressed by appellate judges using testimony from the 2016 evidentiary hearing.

“Eric Stauffacher, a software engineer for the company that created Tigerview, explained the … software. He demonstrated its use in real time for the judge in the courtroom. According to the judge’s findings, Stauffacher, ‘as easy as child’s play,’ rendered the skull image on the disc given to defense attorneys.”

Another issue was the autopsy physician, Dr. E. Choi, testifying during the initial trials that he saw the skull fracture, and that it might not show up in X-rays. Defense attorneys submitted a letter from Choi detailing a pretrial meeting, with then-state’s attorney prosecutor Christen Bishop. He stated missing an existing subdural hematoma on the Kingan child, leading to a misdiagnosis on cause and manner of death. Bishop still proceeded with the prosecution of Calusinski.

During the April 18 hearing, Zellner said, “The condition was missed by Dr. Choi … Dr. Montez did not touch or feel a linear fracture, and with a clear .TIFF image … these are big mistakes not to tell a jury,” said Zellner. “The medical evidence corroborates this, and also does not fit the rendition of Melissa Calusinski in the confession causing the injury.”

Calusinski was interrogated for nine hours, and offered different scenarios by investigators on the potential cause of the child’s death. Choi conducted a second autopsy, during the interrogation, allegedly giving findings as if it was the first autopsy in real time, and relayed to Calusinski and investigators. The appellate decision stated, “Defendant’s confession is consistent with Ben’s injuries. Contrary to defendant’s contention, the police did not lie to her about the fracture’s existence.

“Dr. Choi informed the police of his findings, and, during the second autopsy, he experimented to determine that defendant’s multiple explanations of how Ben was injured were physically impossible. The police relayed to defendant what the physical evidence showed. When the police told defendant that her versions were not consistent with the medical evidence, she finally confessed to throwing him to the floor with force.”

The confession itself has come to be viewed as coerced, due to Calusinski’s low comprehension level, and the methods employed through the use of John Burns Institute techniques to elicit incriminating statements. The appellate judges also rejected the notion that defense attorneys had to concede the skull fracture, during the initial two trials, based on the diminished X-rays. 

“Here, the evidence consistent with defendant’s innocence, that Ben’s injuries were caused by a re-bleed of a chronic subdural hematoma in the final head-banging incident, is the defense … ably presented at trial. Finally, because the standard of review is so highly deferential, the opposite conclusion must be clearly evident.”

A request for comment from Lake County State’s Attorney Michael Nerheim, through the office’s communication director, Cynthia Vargas, was not returned.

—Appellate Court denies Calusinski petition for new trial–