Melissa Calusinski’s attorney, Kathleen Zellner will now file her clients Reply Brief by January. 11, after being granted a fourteen day extension. The Reply Brief, will be in response to State Attorney Michael G. Nerheim’s Brief and Argument for Plaintiff-Appellee. The state’s Brief, filed November. 27, was an unauthorised six days late, a fact that the 2nd District Court of Appeals could view unfavourably.
Reasons for Ms. Zellner’s request for an extension centred around x-rays taken of Benjamin Kingan after his death on January. 14, 2009.
“We took an extension because after we performed an exhaustive state by state and federal search we concluded the Calusinski case is of a case of first impression on the issue of an incomplete disclosure of underlying data.” Zellner asserted.
The legal term first impression relates to issues set forth of “a completely original issue of law for decision by the court.” In this case it will be presented to the 2nd District Court of Appeals in Illinois. The citing of previous case law in relation to the state’s Brief & Argument for Plaintiff-Appellee would therefore be muted as such a case “cannot be decided by reliance on any existing precedent, law formulated in a prior case decided on a comparable question of law, or similar facts.”
Ms. Zellner’s mention of “an incomplete disclosure of underlying data.” likely refers to the state’s assertion that Melissa Calusinski’s previous attorney, Paul Deluca, had the necessary tools at his disposal (TigerView software) to re-enhance the x-ray images of Benjamin Kingan’s skull and torso. This has been hotly disputed by both sides. Computer Expert for Ms. Zellner, Jeffrey Mueller, offered testimony that the ‘window size’ of the x-ray of Benjamin Kingan’s skull had been fully compressed before the change in file format from TIFF to JPEG. However, the reality that the file conversion from a TIFF format, to that of a JPEG, was unwarranted due to there only being 3 x-rays copied to a compact disc (Easily enough space available without the need for file compression) could also prove pertinent.
Melissa Calusinski’s Reply Brief will have the answers to my speculation.
Ms. Zellner’s conclusion that Melissa Calusinski’s case was one of first impression would put the onus on the appeals court to use its own reasoning, aided by writings and opinions of legal scholars, rather than past precedent set out in previous case law. Ms. Zellner went on to add,
“In our [Melissa’s] case it is data contained in an x-ray image but the ruling could have far reaching consequences for other types of data. We believed we needed more time to fully address this novel issue.”
Once Melissa Calusinski’s Reply Brief is filed, it will be down to the Court of Appeals to make their decision. An Oral Argument has been requested, but the Court is not obliged to hear one. They are within their rights to make a ruling on the briefs offered by Ms. Zellner and the state alone. However, Oral Arguments are looked upon favourably by the courts. What can be put forward in writing can often be further reasoned by a back-and-forth conversation between the rival attorneys and the judges.
There will be no response from the state to the Reply Brief due on January. 11. They are not afforded one. After the Reply Brief is filed, all eyes will be on The Court of Appeals.
Kathleen Zellner always appears to have that extra trick up her sleeve.
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