State’s Delayed Filing In Melissa Calusinski Appeal Granted. Reply Brief Expected Before Christmas, Barring Extension.

On November. 27,  Lake County State Attorney Micheal G. Nerheim submitted the State’s Brief and Argument for Plantiff-Appellee in response to Melissa Calusinski’s request for Oral Argument.

The brief, filed with the Clerk of the 2nd District’s Appeals Court, was filed electronically, with copies sent to Ms. Calusinski’s defence attorneys on the same day.

State’s Brief & Argument for Plantiff-Appellee.

Speculation by Be The rain that the filing was under-seal, were proven unfounded as reasons for its late filing were given by state attorneys as follows:

Following a second extension of 60 days, granted by The Appellate Court on September. 22, filing was expected by November. 21. Whether there will be ramifications for the state’s late filing is not yet known, but the filing was accepted as of December. 4. Lake County State Attorney Michael Nerheim did ‘ask[s] this Court to give defence counsel additional time to complete and file the reply brief.’ as of way of apology.

Whether this request is granted, or indeed Ms. Calusinski’s defence attorneys wish for extended time remains to be seen. Kathleen Zellner and Associates now have until December. 18 to file their Reply Brief, baring a request for extension. Once Ms. Calusinski’s response has been filled with The Appellate Court in Elgin, Illinois, attention will shift as to whether the court accepts her request for Oral Argument in a decision that could take anywhere up until the Spring of 2018.

Brief of Defendant-Appellant Melissa Calusinski, Oral Argument Requested.

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Melissa Calusinksi: Sentenced to 31 years in prison for the 2009 murder of Benjamin Kingan.

Ms. Calusinski’s Reply Brief may be no longer than 20 pages, with its purpose ranging from bringing to the attention of the appeals court misstatements of facts or laws brought by the appellee, or to bring new or recent authority to the attention of the reviewing court. Ms. Calusinski’s attorneys are also likely to challenge and correct possible misstatements about the appellant’s position and offer why the appellee’s position is incorrect. Perhaps of most note however, would be Kathleen Zellner and Associates referencing as to why the authority relied upon by the appellee, should not control the outcome of their clients appeal and request for post-conviction relief.

In the first of 2 articles, Be The Rain looks at the one of the state’s 2 issues presented for review.

The State’s Brief & Argument for Plantiff-Appellee reasoned that the trial-court properly denied Ms. Calusinski’s claim under ‘Brady vs Maryland’ “because the X-rays that form the basis of the claim were tendered to the defence before trial.” 

In relation to the above, transcripts from before Ms. Calusinski’s trial commenced, are offered below. Attorney Christen Bishop, Judge Daniel Shanes and Attorney Paul DeLuca, shown discussing the 3 X-rays of Benjamin Kingan for the first time:

[Ms. Bishop being cited as Mr. Bishop is erroneous as to the transcripts.]

Transcripts shown are from September. 7. 2011.

The state’s position that Attorney Paul DeLuca was in possession of 3 X-rays of Benjamin Kingan’s head and torso is undisputed. The reasons as to why the images of Benjamin’s skull and torso were of such poor quality was due to first, the full compression of the window size of the file (for image 50), and then the changing of format from TIFF to JPEG (for images 48,49 and 50). All files stored on the Lake County Coroner’s hard drive were saved in TIFF format.

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The 3 X-rays given to Mr. DeLuca, Images, 48, 49 and 50 were accompanied with a piece of software named TigerView. TigerView enabled the user to enhance the JPEG files in question back to their original TIFF format via decompressing the file. Image 50, which was titled BenKingan1 on the CD received by Mr. DeLuca, was altered before being converted to a JPEG file format according to testimony by Jeffrey Mueller at Ms. Calusinski’s Evidentiary Hearing. Image 50, located on the Lake County Coroner’s computer, which was an X-ray of Benjamin Kingan’s skull, had been compressed as far as possible. Mr. Mueller’s explanation for the poor quality of Image 50 was that it had been reduced to a ‘window width’ of 3. The maximum window width being over 65,000. Of the 719 images found on the Coroner’s hard drive, Image 50 was the only image with a window width that was not in the thousands. Of the 3 images sent to Mr. DeLuca, image 49, that of Benjamin Kingan’s head & torso (BenKingan2 on Mr. De Luca’s CD), no modifications of the window width were made. Image 48 (BenKingan3 on Mr. De Luca’s CD), an X-ray of Benjamin’s lower torso, exhibited adjustments in brightness, contrast, gamma and also window size. The images forwarded to Mr. Deluca were created on September. 6, 1 day before he received them from Ms. Bishop, Mueller testified.

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Image 49: X-ray of Benjamin Kingan’s skull and upper torso. TIFF file format, as found on Lake County Coroner’s hard drive.

The state maintains that no Brady Violation occurred because Mr. De Luca was afforded the necessary software (TigerView) to enhance the condensed files back to their original size and definition. Ms. Calusinski argues that files, and image 50 in particular, were altered before being converted from TIFF to JPEG file format and sent to her defence attorneys. Mr. Mueller testified that no files stored on the State Coroner’s hard drive were of a JPEG format (condensed file size.) Of equal importance, there was no merit in condensing the original TIFF files to a JPEG format as a CD, of which they were transferred to was capable of storing the TIFF images approximately 14 times over. The 3 files in their original TIFF format amounted to little over 50 megabytes of data, with the storage space of a CD capable of approximately 700 megabytes.

In addition to the 3 files being stored on the CD in JPEG format rather TIFF format, alterations to image 50 were made before transfer. Image 50, saved as BenKingan1 on the defence CD, was reduced down to its lowest possible window size, before being saved as a JPEG, thus further reducing it’s clarity and detail. Importantly, Mr. Mueller testified that because of these alterations prior to transfer to CD in JPEG format, he was then unable to restore the BenKingan1 image back to it’s former quality as to that of the TIFF file of image 50 stored on the State Coroner’s computer.

The state countered Mr. Mueller’s findings with testimony provided by TigerView engineer Mr. Eric Staufaccher, by refuting Mueller’s claims that he was unable to re-enhance the images provided to Mr. De Luca. Staufaccher’s testimony that the process was “child’s play” countered Mueller’s testimony that he could have spent his “entire life” restoring the images provided to Mr. De Luca. Mueller did however testify that had he had access to the coroner’s computer, he would have been able to restore the condensed JPEG file back to its original quality “in less than 10 seconds”. However, because of the lack of metadata exhibited on the BenKingan1 file on the CD, this was not possible.

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Paul De Luca: Represented Melissa Calusinski at her trial in 2011.

This key change to the metadata before the change of file format would appear to be the bone of contention in relation as to whether the JPEG image could be re-enhanced back to its former TIFF glory. The question being: Would this alteration of metadata, before the change from TIFF format to JPEG format turn what would be “child’s play” to restore, into an “entire life[‘s]” work to restore? With this in mind, would this then constitute a Brady Violation?

The state’s response to Ms. Calusinski’s Brief refers time and again to either testimony given by Mr. Staufaccher or the Trial Court’s findings at the Evidentiary Hearing. The problem with continuously citing either opinions is that neither appear qualified to make such statements. For example:

However, the above isn’t true with files that had been drastically reduced in window size (metadata) before being saved as a JPEG file format. Merely increasing the brightness and/or contrast doesn’t restore the lost metadata. There is no way of regaining the metadata if it simply is not there to begin with. On the Lake County Coroner’s hard drive it was possible. On Mr. De Luca’s CD it was not. One of the main issues with certain Trial Courts is that they rely and adhere to given testimony by state produced ‘experts’ that simply don’t have the qualifications outside of their allotted field, and more importantly, should not be allowed to testify when dealing with a defendant who’s life has been taken away from them. Sadly the Trial Court took the opinion of Mr. Staufaccher rather than that of Mr. Mueller. Hopefully the Appeals Court will rectify this error.

This will be for the attorneys from either side to argue however, and for the Appeals Court to decide.

I am not a lawyer and my opinions should not and certainly will not be of any interest to those in a position of power. What I can offer though, is my opinion on how justice should be attributed.

The citing by the state of the Trial Court’s assertion that “As so many factors can effect whether a fracture would be visible on an x-ray, it does not necessarily follow that it is not impossible for an
x-ray to show a fracture.” poses a grave issue.

During Ms. Calusinski’s trial, the state prosecution referenced the alleged skull fracture 32 times. Whilst, the Trial Court claims “that it is not impossible for an x-ray to show a fracture” may be true, it certainly does raise reasonable doubt, beyond a doubt. Accepting the fact that, in my opinion, Ms. Calusinski’s conviction centred around this “not impossible” fracture and her heartbreakingly obvious false confession, the jury’s decision to find Ms. Calusinski guilty of murder was considerably, and gravely affected by their belief that a skull fracture was present. In all likelihood, a skull fracture simply did not exist. After all, “not impossible” does not instil confidence. If the TIFF images of Benjamin Kingan’s X-rays had of been shown in court, I am confident the prosecution would not have referenced a skull fracture once, let alone 32 times. More importantly, I offer that state witnesses certainly wouldn’t have testified to a skull fracture.

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Jeffrey Mueller, testifying at Ms. Calusinski’s Evidentiary Hearing in 2014.

The fact that the files were transferred to a CD in JPEG format ‘could’ be explained due to a habit of sending files via e-mail but this does not change the reasons for X-rays being used. Fundamental to X-rays are their clarity and detail. Without this, they are worthless. The absence of readable X-rays did affect the jury’s decision making, and added to the fact the state prosecution did reference a skull fracture 32 times, can be directly attributed to the absence of legible X-rays.

Whether Ms. Calusinski’s claim of a Brady Violation is accepted by the appeals court or not, it doesn’t change the fact that the original X-ray is available. While I accept that the law (and in this case, specifically brady) does not opperate by these confines, common-sense does. Respectfully accepting that attorneys must opperate within the confines of law, I, as a criminal justice reform journalist do not. Arguing that the emergence of the TIFF format X-ray of Benjamin Kingan’s skull does not constitute ‘new evidence’ ultimately doesn’t change the fact that it exists. Many legal minds would argue that if this thought process were to be brought into effect, an unrealistic number of cases would need to be re-tried or overturned. My answer: Get it right the first time around.

Can all mistakes be eradicated? No. Can many mistakes be eradicated? Yes.

In the case of Melissa Calusinski, the coming-to-light of X-rays is only one of many reasons that I am convinced of her innocence. For the concluding part of this article, claims of perjured testimony comes into question, and specifically that of the Non-Board-Certified Dr. Manuel Montez.

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    James Didcock

    Journalist

    Writer at betherain.org Non profit organisation detailing Justice Reform and Environmental Issues. Get involved and make a difference.

  • Show Comments (3)

  • Jodie Nettelhorst

    Thank you James! Well written article.

  • John Minarcik

    I have been following this case closely for years and it is quite clear Melissa is clearly and unquestionably INNOCENT, Filenko is a sleazeball sadistic villain, Nerheim is doing his very best to delay the inevitable, possibly to save his political future aspirations, and Shanes is totally dirty.

    John R. Minarcik, MD

    • mm
      James Didcock

      I’m aware of your closeness to this case John. I actually got Zellner’s Brief from your website. Thanks for that! Now that we are away from the Trial Court things will hopefully be seen for what they are. I am hopeful that this case doesn’t have to go to a Federal Court to be solved.

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