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 7th
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.
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.
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 5th and 7th
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
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
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.
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 19th and 20th, 2017
Based on Notes Taken on December 17th, 20th, and 31st, 2016
Author's Notes Added on June 18th, 2017 and February 27th, 2019
Based on Notes Taken on December 17th, 20th, and 31st, 2016
Author's Notes Added on June 18th, 2017 and February 27th, 2019
Thanks to Matt Johnson for his assistance and advice
