Due Process Violations in Melissa Calusinski's Murder Case

       I was holding Ben up, off of the floor. It looked like he was about to stand on his tiptoes. I thought he was going to stand up, but when I let go of him, he fell.¹ He kind of almost slipped when I dropped him.² Then his head hit the chair.^{1, 2}

      If asked to summarize concisely why the 2009 death of infant Benjamin Kingan was an accident, then this is what Melissa Calusinski would probably tell us. She was charged with intentional homicide in Ben's death, amidst questions; about malfunctioning X-ray software, and about the presence of previous head injuries to the child.

      Several days ago, Calusinski, age 30, marked eight full years behind bars for first-degree murder; at the Logan Correctional Center in Lincoln, Illinois. If she serves out her entire sentence, she will serve a total of 31 years, being released at the age of 53.

      At the beginning of 2009, Melissa Calusinski worked as an assistant teacher at the Minee Subee in the Park day care center in Lincolnshire, Illinois.² That January, sixteen-month-old Benjamin Kingan died in her care, evidently due to a head injury sustained while in Calusinski's care.

      The way the State of Illinois defines homicides, Calusinski's first-degree murder conviction carries with it the implication that she intentionally killed Ben, or at least inflicted injuries upon him that she knew would be likely to lead to his death.

      Melissa Calusinski's request for a reversal of her conviction was denied last September. Some time this month (January 2017), her attorney Kathleen Zellner appeals the case again. Zellner is known for defending Steven Avery of Making a Murderer fame.

      Although Melissa Calusinski has been convicted of first-degree murder, there is plenty of reason to believe that she is innocent of the charges against her. It also seems that the detectives who interrogated her may have committed numerous violations of her rights to due process of law.

      Among those are:

1) perjury in the courtroom by detectives, prosecutors, and the state pathologist;

2) wrongful suppression or unreasonable dismissal of evidence, including exculpatory evidence;

3) wrongful admission of an incomplete piece of evidence which may not yet have been examined in full detail by either defense or prosecution;

4) wrongful admission of video evidence that shows a coerced confession;

5) misrepresentation regarding legal rights, by police;

6) false arrest, unlawful detention, wrongful incarceration, improper inhibition of right to locomotion, and / or unlawful seizure of an individual's person, all resulting from Calusinski being locked in the room during her voluntary police interview);

7) deprivation of access to several basic human needs during an inappropriately prolonged interview, by detectives;

8) compounding of emotional trauma that Calusinski was already experiencing, through intimidating behaviors by detectives;

9) defamation of Melissa's character by prosecutors, creation of a bias against the defendant in the courtroom, and unethically using Melissa's low verbal comprehension against her in order to distract the jury from the implications of her lack of knowledge of her legal rights;

10) deprivation of Melissa's income, perhaps as high as $20,000 per year for eight years;

11) wrongful conviction; and

12) a possible double jeopardy violation pertaining to the day care center's liability.

      Here are the facts of the case as I see it.

     Given Calusinski's low verbal comprehension,^{2, 3} vulnerability to suggestion³, and lack of understanding of her legal rights², it seems appropriate to suggest that Calusinski would have thus been more easily misled, confused, and intimidated into making a false confession. After denying her guilt at least 79 times, she had become essentially coached by detectives to give a story that would explain the way they perceived the extent of Ben's injuries.

      The facts that Melissa never asked for an attorney¹, spoke to detectives without a lawyer present, didn't seem to understand the seriousness of the charges³, asked whether the incident would appear on her criminal record, and thought she'd be allowed to go home after the police interview, should help drive home the previous point.

     The existence of a state of duress would be abundantly evidence if it could be shown that police continued questioning Melissa for longer than she was willing to do so, but it is somewhat unclear whether that is exactly what happened.

     So should the facts that Calusinski stated that she was “terrified” and “emotionally exhausted”7 when her voluntary police interview began, and stated that she hadn't slept much in the 41 hours between Ben's death and the start of the interview. Detectives' actions during the interview appear to have aggravated the emotional trauma that Calusinski was experiencing.

      These facts demonstrate a want of understanding on Melissa Calusinski's part, and that coupled with her vulnerability to suggestion (while police instruct her to parrot-back a lie²) strongly suggest that detectives were intentionally manipulating Calusinski.

      Detectives put Calusinski into a state of duress and coercion by locking her into the small 9” x 12” interrogation room². Their locking her in was a violation of the law; Calsinski was there voluntarily, and therefore had the right to leave at any time. Judging by the nine-hour duration of her interrogation⁴, it seems that she was not aware that she had this right; and that suggests that detectives misrepresented her through omission by failing to inform her of her right to leave.

      Calusinski's state of duress was also compounded by deprivation of access to restroom facilities⁵ and to food⁵. It is worth noting that being deprived of food and bathroom access – in addition to Calusinski's stated loss of sleep prior to the interview – can contribute to a state of disorientation, which could have compounded Calusinski's known vulnerability to suggestion.

      It is unclear whether she was deprived of water, how long Calusinski was deprived of food and bathroom access, and whether she also should have been provided with a mattress while in custody for that nine-hour period.

      However, if Melissa truly was deprived of food and restroom access (as JWCDaily reported in March 2015), then it would be appropriate to charge officers Sean Curran and George Filenko for allowing that deprivation to occur through negligence, or perhaps even for deliberately declining to inform Melissa of her rights to stop asking questions and end the voluntary interview at any time.

      Another set of factors which contributed to the creation Calusinski's state of intimidation are the basic facts about the interviewing detectives and the set-up of the interrogation room. Melissa was interviewed, seated in the corner of a 9” x 12” room⁷, with two large policemen and a table taking up the vast majority of the room. This seems sufficient to establish that intimidation occurred.
      As if that weren't enough, detectives cursed, shouted, and slammed their fists on the table during this voluntary police interview, according to Kathleen Zellner.³ Reporter Ruth Fuller called the confession the most troubling confession that she has ever seen.³

      Calusinski has stated that she can't explain why she confessed, nor why she demonstrated slamming Ben to the ground.² The fact that detectives told her that Ben's injuries were consistent with being thrown from a second-story building onto concrete, would perhaps explain why Calusinski felt it appropriate to demonstrate throwing the infant to the floor, while she has otherwise maintained that she accidentally dropped him, and then he hit his head on a chair.^{1, 2}

      Given the apparent fact that police essentially fed Melissa the kind of story they wanted to hear, it seems that the interviewing and arresting officers likely committed some form of wrongful interrogation or misrepresentation. Calusinski's lack of awareness of her legal rights, apparent lack of understanding of the seriousness of the charges, and her belief that she'd be allowed to go home after she confessed, help demonstrate that misrepresentation probably took place at least once between the beginning of the interview and the booking.

      Detectives likely deliberately misinformed or misled Calusinski regarding her Miranda rights, her right to leave a voluntary interview, and / or her right to have an attorney present. Additionally, it is unclear at what point Melissa was formally placed under police custody, given the facts that she stated she was locked into the room, when she should have been free to leave, having agreed to a voluntary interview.

      It seems fair to say that police lied to her about her rights, at least through omission, if not through positive speech. Through either their action or inaction, Calusinski was deprived of food, restroom access, a mattress, a police interview of reasonable duration, and the ability to make statements under conditions of sound mind and judgment.

      Calusinski's judgment was impaired through deprivations of basic needs through the fault of the police, deprivation of sleep through emotional trauma, and additional emotional trauma and intimidation inflicted by police.

      Aside from simple trauma and intimidation, a demonstrable state of coercion and duress began the first time that Melissa was locked in the interview room. Additionally, wrongful incarceration or wrongful arrest may have occurred; that is, if she was first locked in before she was read her Miranda rights). If that did happen, then Calusinski's natural right of locomotion (i.e., travel) was also probably unduly inhibited, and her individual person was likely improperly seized by police.

      Some of the detectives' statements to Calusinski – such as “that's a bunch of lies”, “that story you're giving us is a load of shit”, and something to the tune of “something else must have happened”3, suggest that detectives were intentionally trying to mislead and confuse Melissa; to coax out of her a confession that would satisfy them. This repetition of blatant lies and concocted stories were not mere suggestions; they were insisted upon, amidst some eighty denials of guilt. Accompanying that insistence were cursing, shouting, and slamming of fists.

      It is worth noting that several interrogation techniques used by officers Curran and Filenko parallel components of the Reid Technique, which can involve officers misleading confusing the suspect into making a false confession by asking them questions and limiting the acceptable answers.

      It seems fair to conclude that police allowed Calusinski to be poorly informed of her rights, and thus misrepresented, through refraining from informing her of her right to leave, and to stop the interview, which was at least 350% longer than even the longest interviews are supposed to be; a fact which is especially unusual given the fact that Calusinski agreed to be interviewed.

      The repeated lies by police and prosecutors were not the only lies that hurt the case for Calusinski's freedom; state pathologist Dr. Eupil Choi may very well have manipulated evidence when he crossed out the word “significant” in an affidavit regarding the head injury which Ben Kingan sustained two months prior to his death.

      When detectives insisted that Calusinski explain Kingan's apparently extremely grievous injury, they told repeated lies about what happened, expecting her to more or less parrot those lies back to them. Her repeated insistence upon her innocence, her statements that she doesn't know why she confessed (nor why she demonstrated practically body-slamming the child onto the floor)², and the testimony of her co-workers that they never saw her get angry nor frustrated with the children in her care³, all point to the likelihood that police lied repeatedly.

      The fact that Nancy Kallinger stated that she didn't hear screaming nor crying at the time of Ben's death5, suggests that Ben's last moments of life were much less violent than Melissa's body-slamming demonstration made them look. So too does the fact that Ben died foaming at the mouth, in his sleep, laying in a chair. Also, that he died no more than a few days after recovering from a stomach bug, and after suffering multiple previous head injuries; due to bumps, headbanging, and throwing his head back several times shortly before he died.

      Prosecutor Matthew deMartini called Ben's October 2008 injury “microscopic”, while then Lake County Coroner Thomas Rudd stated that that injury was visible to the naked eye.³ Prosecutors conceded that that injury occurred, but also said that the injury was “too small to matter”³, attributing Ben's death exclusively to having been thrown to the ground by Calusinski.

      Additionally, Rudd testified that the previous injury could have easily killed Ben by itself; Rudd testified that Ben was a head-banger; and Nancy Kallinger stated that Ben threw his head back, slightly, twice, shortly before he died. It is my opinion that prosecutors inappropriately downplayed, and wrongfully suppressed, evidence of Kingan's previous injuries. They also likely neglected to discover the total number of head injuries that Ben Kingan sustained during the last two months of his life.

      Ben's 95th-percentile abnormal head growth³ probably should have been attributed to brain swelling resulting from multiple head injuries, not dismissed as if it were not significantly outside the normal range of head size. Additionally, Ben's pediatrician may have failed to pay sufficient attention to the October 2008 head injury (which resulted in a bump that day care workers then reported to Ben's mother)³.

      These facts, Dr. Choi's having edited his affidavit, and the failure of the prosecution team to sufficiently brighten an X-ray of Ben's head, all seem to strongly suggest that some key evidence was ignored, incomplete, wrongfully suppressed, and / or manipulated.

      Because the precedent in Brady v. Maryland established that withholding of evidence violates due process when evidence is material to guilt or puishment; it may be appropriate to investigate prosecutors for withholding evidence, as long as it can be demonstrated that the prosecuting team negligently failed to undertake reasonable effort to brighten the X-ray. Whether deliberate or negligent, the darkness of the X-ray resulted in neither defense nor prosecution being able to observe that piece of evidence in full detail; this points to incomplete evidence.

      Given that head injuries can cause vomiting, it seems equally possible that Ben's vomiting could have resulted from either the head injury or the stomach bug. It is unclear whether Kingan was still suffering from a stomach bug in the day or two leading up to his death (which is to say, after he had apparently recovered from the bug, after drinking Pedialyte). It is also unclear whether orange foam coming from Ben's mouth should be attributed to injuries or a virus.

      However, what does seem clear is this; the head-banging in the last several months of Ben's life - in addition to the stomach bug that he had apparently gotten over at some point in the last three days of his life - were both downplayed and contested by prosecutors as factors contributing to Ben's death. I would hope that the examples of evidence mishandling, which I mentioned above, should be enough to reverse Calusinski's conviction and / or prompt a new trial.

      Calusinski deserves to be compensated for each of the due process violations against her, including defamation of her character, and creation of bias against the defendant in the courtroom. In my opinion, she should be awarded at least $160,000, the equivalent of eight years' worth of her 2008 salary. She should also be given an additional $30,000 or more for defamation of character.

      Any physical assaults she sustained while in police custody (of which there is no apparent evidence) should entitle Calusinski to further compensation, as should the exacerbation of her emotional trauma by police. I feel that Calusinski ought to be entitled to a total of perhaps as much as a quarter-million dollars.

      As I just implied, if it could be demonstrated that Calusinski became victim of physical assault at any point while in police custody (which her videotaped coerced confession would have shown, and didn't), then Calusinski should be entitled to compensation.

      But even if there is no evidence of direct initiation of physical force (aside from the initiation of force implied by an unlawful arrest), it could be easily shown that Melissa was physically and emotionally intimidated by the large, strong detectives who interviewed her. Zellner's statement that police cursed, shouted, and slammed their fists on the table, help bolster arguments claiming emotional trauma and confession under intimidation and duress.

      Given that Melissa was apparently the only employee present in the room when Ben died, it does appear that it was appropriate to hold the day care center liable, due to state requirements that at least two adults be in a room with five or more small children. However, as an employee of Minee Subee in the Park, Calusinski was a subsidiary of the company, which is supposed to be exclusively liable for its subsidiary employees.

      Calusinski should never have had criminal charges read against her, because the day care center that represented her had already made a $2 million cash financial settlement with Ben's family. The Supreme Court has ruled that a person can't be convicted of a charge if a civil debt was already paid off with cash; and as an employee and subsidiary, Calusinski cannot be sued – nor held liable responsible for damages – if her employer has already been held liable. Otherwise, a 7^th Amendment due process right has been violated.

      It is my opinion that Melissa Calusinski and Kathleen Zellner should:
     1) move for judgment that a false conviction has occurred;
     2) co-author a joint statement that will suffice as new evidence, hopefully prompting a new trial;
     3) move to have the case re-tried;
     4) insist on Melissa's innocence on most charges;
     5) consider striking a plea bargain, pleading guilty to a charge lesser than first-degree murder (such as negligent homicide or negligent manslaughter), and asking for eight years prison time served;
     6) seek to nullify Calusinski's conviction (overturning any case law precedents that it may have created);
     7) have Calusinski invoke her Fifth Amendment freedom from self-incrimination when she speaks to an investigator;
     8) moving to charge police officers and prosecutors with potentially multiple counts of each of the rest of the due process violations listed in the list of twelve above;
     9) suing the prosecutors for declining to move to dismiss the case; and
     10) taking any steps possible to have the prosecutors disbarred.

      Additional new evidence which could be created or produced include new testimony by Calusinski's co-workers; new testimony by outside experts on murder and child head injuries; and a newly lightened, clearly visible, sufficiently contrasted X-ray of Ben Kingan's head (taken the day of his death).

      I would recommend that Melissa; her sister Crystal; Nancy Kallinger; Dr. Eupil Choi; now former Coroner Thomas Rudd; all interviewing and arresting oficers; an additional, new expert witness on brain damage in children; and an new expert on murder (one who is willing to testify about under what circumstances people commit murder), all volunteer - or be subpoenaed - to testify in a new jury trial.

      The defense team should move to suppress the video of Calusinski's nine-hour police interview; on the grounds that it is inadmissible because of the states of confusion, intimidation, deprivation, and duress. Any evidence obtained during searches which may have followed arrest according to improper procedure should also be suppressed, due to the doctrine of the fruit of the poisonous tree.
      There are additional facts which suggest not only deliberate misrepresentation, but professional incompetence, on the part of the prosecuting team; this is a piece of information that the defense should emphasize in addition to the possible perjury and misrepresentation committed by the prosecutors. Calusinski should sue her prosecutors for refusing to move for dismissal of the case against her. Successfully drawing attention to the numerous failures and lies by prosecution could aid in an effort to get the prosecutors disbarred.

      I would also recommend that Calusinski and her defense team consider doing nine additional things.

      First, Calusinski might consider sending an apology letter to the Kingan family, expressing regret for her role in Ben's death (that is, if she has not yet done so). Calusinski should be careful to avoid implying that she has remorse stemming from guilt of first-degree murder, but some expression of remorse for her own negligence would likely be appropriate.

      Second, Calusinski's defense should discover exactly what physical evidence Calusinski was originally indicted on. If there was no physical evidence, or if it is unclear what Calusinski was first indicted on, a violation of precedent set by Terry v. Ohio may have occurred.

      Third, Calusinski might consider hiring a male to defend her, rather than her current female attorney. The image of a distinguished man defending an innocent young woman might prove to be more palatable to juries than the image of two women working together to put a first-degree murder convict out on the street.

      Fourth, Calusinski's defense should prepare to appeal her case as many as four times. The defense team should attempt to get two hung juries in a row, and it should appeal every single due process violation, in order to avoid having their request for a new trial denied.

      Fifth, Calusinski should exercise her right to decline to be present at pre-motion hearings. Calusinski should only testify at trials, because at pre-motion hearigs, her statements may be used by prosecution as evidence against her. She should be able to concisely and clearly articulate why Ben's fall was an accident, and why she confessed when she knew she was innocent (or negligent at the very worst).

      Sixth, the defense should move for a change of venue to a new jurisdiction, due to potential bias in juror selection among those in the north suburbs of Chicago who may have heard of the case, especially given the coverage of her case on national major network television. The defense should appeal any and all judgments by the judge (regarding voir dire, i.e., jury selection) which could be construed as collusion with the prosecutor to dismiss jurors without sufficient rationale.

      Seventh, the defense might consider moving to dismiss jurors who have children, because the presence of too many parents on the jury might create a bias against Calusinski.

      Eighth, the defense team must ensure that the jury is fully informed of the rights of the accused; and of the rights of the jury to determine not only the facts of the case, but also whether the law itself is just and whether it is being applied appropriately.

      Ninth and last, the defense should ask an expert on murder to give testimony regarding how often adults commit murder in broad daylight, indoors, in close proximity to other adults.

      Finally, the defense must passionately and meticulously insist that Calusinski has been wrongfully convicted, and it must demonstrate that the last eight years of Melissa Calusinski's life have more or less amounted to deliberate routine misrepresentation of her rights; deprivation of her needs, livelihood, and comfort; violations of her due process rights; and defamation of her character.

      All options should be on the board; including suing or disbarring prosecutors, moving for the firing of the detectives who interviewed Melissa, and moving for the firing of the medical examiner (Dr. Choi). Defense should also prepare to collect evidence that the judge and prosecutors are attempting to mislead the jurors about their rights.

      The fact that Lake County, Illinois has a history of being reluctant to pay settlements after admitting to false convictions and false imprisonments, shows that a grave injustice will have been committed against Calusinski if her appeals fail.

      Melissa's freedoms of self-ownership and travel, her 5^th and 7^th Amendment (if not others as well) rights to a fair trial and due process of law, and her rights to be arrested and interrogated according to proper procedure, were likely all violated by detectives and arresting officers.

      Even if Melissa Calusinski's negligence caused Ben Kingan's death, she has suffered enough due process violations, and served enough time behind bars, for her negligence. After spending the entire Obama administration in prison, she deserves justice, and she deserves her normal life back.

Sources:

1. “Melissa Calusinski: Detective “Made a Mistake””, Chicago.CBSLocal.com, February 24th, 2016

http://chicago.cbslocal.com/2016/02/24/melissa-calusinski-detective-made-a-mistake/

2. “Melissa Calusinski: Was a Day Care Worker Coerced into a Murder Confession?”, CBSNews.com, July 18th, 2015 http://www.cbsnews.com/news/melissa-calusinski-was-a-day-care-worker-coerced-into-a-murder-confession/

3. “Blaming Melissa”, 48 Hours, CBS News, December 17th, 2016

4. “Daycare Worker Melissa Calusinski Reveals Why She Confessed to Murdering a Toddler: ‘I Was Terrified’”; People Magazine, October 13th, 2016 http://people.com/crime/daycare-worker-melissa-calusinski-confession-murder-ben-kingan/

5. “Is Deerfield “Killer” Innocent? “48 Hours” Suggests So”, JWCDaily.com, March 4th, 2015

http://jwcdaily.com/2015/03/04/is-deerfield-killer-innocent/

6. “Free Melissa Calusinski”, Facebook.com, accessed December 18th, 2016 http://www.facebook.com/FreeMelissaCalusinski/

7. “Questioning Melissa Calusinski”, CBSNews.com, February 28th, 2015 http://cbsnews.cbs.com/news/48-hours-questioning-melissa-calusinski/



Author's Note:

     Court documents reveal that Calusinski was not locked in the interrogation room, although there is plenty of reason to suspect that she believed she was locked in, which would help account for behavior if, indeed, the confession was coerced. Any person who reasonably believes they are being detained, are, for all intents and purposes, being detained; and police and private security guards alike subscribe to that code.

     Additionally, it is apparent from court documents that Calusinski had access to food during the interrogation; however, she was not eating at the time because she was distraught and could not bring herself to eat. Calusinski apparently did have water and restroom access at the time.

 Written on January 19^th and 20^th, 2017

Based on Notes Taken on December 17^th, 20^th, and 31^st, 2016

Author's Notes Added on June 18th, 2017 and February 27th, 2019

Thanks to Matt Johnson for his assistance and advice