Melissa Calusinski

I often do not blog about cases that I feel still have some significant dealings to go through in the criminal courts.  For instance, on my list of cases to research I will skip those in which are very recent crimes, have not yet seen a trial of any kind or is reported to have a court date in the near future.  Now, that is not exactly the case when it comes to the Melissa Calusinski case but it is one that I feel is not completely over and has more to come. Why do I think that?  Well, largely it has to do with the person now representing her, Kathleen Zellner.  If you keep up with the news then you know who she is.  For the past year she has made her biggest headlines because she is currently representing Making a Murderer subject, Steven Avery.  But, Zellner is not the only reason I think this case will see more action.  I have seen several television shows about the case as well as many articles from both sides of this story and I just feel there is more to it and it will see the inside of a courtroom for years to come.

When I think of the Melissa Calusinski case I often also think of the West Memphis Three case.  Melissa, like Jesse from WM3, has lower intelligence level and after almost ten hours of interrogation and repeated denials of involvement confessed to doing something that she almost immediately retracted and has never admitted again.  Like the WM3 case, the victim here too was a child.  I found myself first while researching and later while compiling the information writing the word "death" as opposed to "murder" when referring to the victim. I am unsure if this is something I regularly do in cases that I obviously take issue with or not.

On January 14, 2009 a 9-1-1 call was made from a local daycare in Lake County Illinois. Sixteen month old, Benjamin Kingan was found unresponsive with foam and blood coming from his nose.  He would be transported to a local hospital where within a few hours he would be pronounced dead.  

Investigators started bringing in workers from the day care center to talk to them to determine what had happened.  One of the first was Melissa Calusinski who had found Benjamin and had made the 9-1-1 call.  While it seems that other people were being interviewed and information filtered to the detectives interrogating Melissa, they pressed her harder and harder.  They tried many tactics to get her to confess that she had done something to Benjamin.  Melissa denied having hurt Benjamin over 100 times before after nearly ten hours of questioning she confessed to "throwing" him to the ground.  Medical professionals had already decided, without a full examination yet, that some sort of brain injury had to have caused the symptoms and death.

Prosecutors held Melissa over for trial and in November of 2011 she was found guilty of causing Benjamin's death.  She was sentenced to thirty one years.  One of the first things I find interesting is that her sentencing did not occur until February of the following year but in March her appeal had already been denied.  I am not sure I have ever heard of a case in which an appeal is heard and decided so fast.  In 2016 Kathleen Zellner took the case and in October of this year they were in court asking for a new trial.  Once again efforts were denied but the second thing I found interesting was that this appeal in 2016 was presented to the judge that had presided over her case in 2011.  Now of course that happens.  In fact, it happened a lot in the WM3 case as the presiding judge handled all of the appeals.  In that case the judge had won a seat at the state level and someone else was to soon take the bench at the county level.  It is believed that it was at this point that the county prosecutors decided in 2012 to make a deal with three boys because they feared a new judge would order a new trial and they knew they did not have the "goods" to re-try them.  I am quite curious to see how Melissa's case comes out because after the 2016 hearing Zellner, while disappointed at the ruling, stated she was pleased that the judge had made "so many mistakes in his ruling" feeling it opened things up for a re-hearing.

So, besides the fact that Melissa confessed to this crime makes this such a questionable case?  Well, there was in 2009, 2011, 2016 and continues to be debate on whether Melissa had anything to do with her death.  Of course this is not unusual, there are hundreds and hundreds of cases in which there is someone, or a group of someone's on the side of the person convicted in a murder.  The unusual part for me is that the evidence towards her innocence is compelling.  At the 2016 hearing the prosecutor would argue that the evidence presented by Zellner was not in fact new, as required by the law, but available and debated at the time of Melissa's trial in 2011. For her part Zellner of course disagrees.  Cases such as this leave me torn because if I were to agree that it was not "new evidence" but evidence that Melissa's trial attorney had, but had not investigated or questioned properly by legal standards that would not warrant a new trial or an exoneration.  However, it just such laws that could conceivably keep an innocent person in jail.  But, I do not exactly feel that way. I do not necessarily think that Melissa's trial attorney, Paul DeLuca failed her, I think he was given bad evidence and did not know it.  The bad evidence?  Zellner would argue that DeLuca was given a copy of the head x-ray of Benjamin Kingan that had been compressed in a way in which that some say it was inaccurate.  While Zellner had experts testify and show how this had occurred and how the original x-ray films showed things that the one provided to the defense and argued this was done deliberately and amounted to prosecutor misconduct, the prosecutor would claim that had the original defense "just used better lighting" they would have seen what Zellner now says can be seen.

So what did the original x-ray show that some argue the compressed (that has apparently been proven by a software expert) did not?  According to many, including those who had testified at trial, and still contend there must have been a new injury, the original x-rays showed evidence from a former head injury.  The doctor who performed the autopsy would later say he failed to diagnose what he called a "chronic subdural hematoma" which is defined as "a collection of blood on the surface of the brain" and it indicated an old injury. Again, I do what to point out that this doctor stated in 2016 that while he does agree there was an old injury he believes there had to have been a more recent injury on the day of his death.

Testimony at trial would show that two months prior to his death day care workers had discovered a golf ball size bump on the back of Benjamin's head.  Presumably his mother was called and informed and while my research was not specific I recall that a television show had indicated he had fallen (I believe at home) and hit his head recently.  I am uncertain if Benjamin was taken to the doctor immediately.  Two days later however he began to run a high fever and his mother took him to the doctor.  It appears not a lot was done, and three days later he was still suffering from the fever and antibiotics were prescribed. Subsequently the fever went away.  I cannot tell you if at any point the bump to the head was discussed with the doctor.  

I want to stop here for a moment and share my own personal experience with issues such as this.  My oldest son was and is what we call a klutz.  We joke that as a child he could not walk through a doorway without hitting his head.  As a young toddler I felt as if we were at the ER constantly although that is obviously an exaggeration.  As he began to get a little older I did not run to the ER at every bump, but it always seemed that the day after he hit his head he would run a high fever.  Regardless if I had been to the ER the night before and told everything was fine or not, I would take him there or to the doctor again.  I will tell you that EVERY SINGLE time we went they would blame the fever on ear infections and attempt to prescribe antibiotics.  It did not matter if I had been there the night before and his ears were checked along with other things and they were fine.... the next day it was an ear infection.  Now, first to be honest, I almost never filled the prescription for the antibiotics because I left very angry, and to be fair his fevers never lasted as long as it is said Benjamin's did.  What I can say is that after one of these incidents with the ER my son had an appointment with his regular doctor a day or two later.  I informed her of what had happened and told her I had not filled the prescription.  She looked at his ears and said they were absolutely fine. She predicted that he had suffered from a concussion and while a CAT scan or x-rays had been performed stated that often a concussion is not visible on those things, especially early on.  

I cannot say what, if any tests were performed on Benjamin at the time he saw the doctor for the fever or even if the previous bump had been discussed.  I want to be fair here and say, as a mother, I absolutely know that kids get bumps and bruises and we have no idea where they have come from, especially at the age Benjamin was.  His life was all about getting up and falling down.  As a parent when your child is hurt they generally cry (I had another child who did not feel pain as a child) and you go running and just try to watch where they are touching and comfort them in any way they need, but you do not always know what happened, what they hit, where they hit or how they hit it.  It is just part of life and any parent who tells you differently is either lying to you, or themselves.  It was testified to, apparently by Benjamin's doctor that about 6 weeks prior to his death he had a wellness check up and appeared healthy.  But again, I do not know what this check up consisted of.

Melissa's co-workers would testify that two days prior to his death Benjamin had vomited several times throughout the day and was sent home.  His mother stated he slept well that night and presumably did not return to the day care until the day of his death.  On that day initially it was reported that he seemed happy and normal and ate a regular lunch.  

One of the workers from the day care testified that she believed that it was possible that Benjamin had fallen and hit his head prior to later being found unresponsive and that she had been in the room.  She would say that she had not seen him actually do this but that he had been in his bouncy seat and at some point she heard him crying and saw him laying on the floor.  She stated she put him back in his bouncy seat and he seemed fine.  A short while later he was drifting off to sleep and she had left the room, leaving him in Melissa's care.  It was a short time later that he was discovered unresponsive. It is during this time alone with him that prosecutors believe Melissa had harmed Benjamin.  They were never clear in it seems in their theory as to if they believed she had harmed him in anger, simply dropped him or there was an accident.  Only that she was there when it happened, had done something and she had confessed to it.  Even experts on both sides agreed that during her, what has been called coerced confession her description did not match the injuries found.  

Also in trial it was brought up that Benjamin had a habit of what they called "head banging" in which he would throw himself back and bang his head on the floor.  Doctors would testify that this behavior is often common (I had one) and "normally" does not lead to serious injury.  However, of course they could not say that it never lead to a serious injury.  

Prior to working at the day care center Melissa had other jobs and one of them was as a Nanny.  She also had babysat for many parents.  Some of them testified at her trial that they had never seen her mishandle or even become frustrated or angry while caring for children. Her co-workers would say the same.

It appears that this case came down to the fact that investigators were convinced that something happened to this child and Melissa was the one in his care when he was found so she must have done something to him.  Just as we argue quite often that a defense attorney can find an "expert" to agree with them, the same can be true about prosecutors. What makes this case a bit different is that some of the experts that testified in the original trial are now saying that there was in fact evidence of a prior injury to Benjamin's head. They say this while still attempting to save face and not completely change their testimony as to the cause of death however, and that is where it gets sticky.  

In the 2016 hearing the prosecutor argued that the issue of whether there was a prior head injury that could have caused Benjamin's death was discussed at the trial, hence it is not the new evidence required to grant a new trial.  It is the prosecutors stance that since it was discussed at the 2011 trial and the jury had the option to either accept or discount the prior injury and chose to discount it, the conviction should stand.

We'll see what Kathleen Zellner has to say about that.