In an article dated December. 6, Be the Rain took issue with Lake County State Attorney Michael. G Nerheim’s Brief & Argument for Plantif-Appellee. In particular, Mr. Nerheim’s assertion, that Lake County Trial Court properly denied Ms. Calusinski’s claim under ‘Brady vs Maryland’ because the X-rays that form the basis of her claim, were tendered to the defense before trial.
For this follow-up article, we will be looking at the state’s reasoning that Lake County Trial Court properly rejected Ms. Calusinski’s claim that her conviction rested on perjured testimony from Dr Manuel Montez.
The state’s response to Ms. Calusinski’s claim of perjured testimony focused on contradicting testimonies from Deputy Coroner Paul Forman, and Head Evidence Technician with Lake Bluff Police Department, David Thomas during Ms. Calusinski’s Evidentiary Hearing in 2011.
Mr. Forman testified that concluding Dr. Eupil Choi’s first autopsy of Benjamin Kingan on January. 15, he had sewn the skull cap back to the skull, and the dissected brain had been placed in a visceral bag within the abdomen.
In its response, the state reiterated the trial court’s decision that ‘Mr. Forman’s testimony had been “directly refuted”.’
“It is undisputed that Officer Thomas attended the second examination with Forman and Dr. Choi on January 16, 2009. When Thomas first saw the body that day, the skull cap was not stitched to the head. In addition, the series of photographs from that examination, clearly support Thomas’ testimony. The first photographs show the head with the skull cap removed. No stitches are present, and there are no stitch marks or holes that would suggest that stitches had been removed…. It is clear to the court that Ben’s skull cap was not stitched to his head after the autopsy on January. 15, 2009, as Forman testified.”
Mr. Thomas’ testimony that the skull cap had not been stitched to the head, was supported by photographs identified by him at the Evidentiary Hearing. The photos presented to him however, were not time and date stamped. Whilst the Trial Court accepted this, they acknowledged that previously viewed photographs did have time and date stamps.
Mr. Thomas’ testimony under Cross-Examination however, conceded that Benjamin Kingan’s brain had been removed and dissected when he observed Dr. Choi’s second examination on January. 16. This is because Dr. Choi’s autopsy 2 days prior, focused on Benjamin’s skull, whereas his autopsy on the 16th, concentrated on Benjamin’s lower body. Thomas, under further Cross-Examination, admitted he was unaware of applicable autopsy protocols and that ultimately, he did not know if the skull cap was sewn on or not. However, the Trial Court stated that Mr. Formans’ testimony had been “directly refuted” nevertheless. Of equal note though is the omission by the trial court that had Mr. Thomas seen the dissected brain, it would have been impossible for Dr. Montez to “observe blood over the surface of [Ben’s] brain.” as it had been dissected the day prior.
The state referenced the trial court’s summation that Dr. Montez’s testimony was of “no relevance” and did not offer any further rebuttal to Ms. Calusinski’s claim of perjured testimony by Dr. Montez. It appears the state felt no need to add to the trial court’s reasoning for not allowing it. The state made no reference to Ms Calusinski’s expert testimony by Dr. Robert Zimmerman relating to the TIFF image X-ray. Dr. Zimmerman stated that Benjamin Kingan “absolutely did not have a skull fracture.” The trial court’s response, after Ms. Calusinski’s Evidentiary Hearing 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 not show a fracture.” appeared enough for the state to not comment further re the perjury claim. Whether this is confidence, arrogance or possibly that they have nothing to add is not clear.
Personally though, I would like to add my thoughts and feelings regarding Dr. Montez’s testimony.
During defence attorney Paul De Luca’s Cross Examination of Dr. Montez, several concerning facts came to light. When Dr. Montez was asked if he was Board-Certified, not only did he confirm that he wasn’t, he admitted that “board certification, regardless of the field is pretty much the standard.” Reasons for Dr. Montez not being Board-Certified were not down to an issue of years spent practising but rather due to the fact that he had “not sat before the board for the test.” Of approximately 100 times that Dr. Montez had testified in court, each and every single occasion had been for the prosecution.
Dr. Montez, licensed to practice forensic pathology in the states of Illinois and California, had published no books or articles at the time of Ms. Calusinski’s trial. When asked if he had, he simply replied “I do not publish, no.”
Dr. Montez was not just a state witness, he was the state’s rebuttal witness. Dr. Montez was ‘Curbside Counsel’ to Dr. Choi and the state offered him as a rebuttal witness to Benjamin Kingan having a skull fracture. Attorney Paul De Luca’s requests for reports from Dr. Montez were not met. The reasoning for this according to Dr. Montez, was that he didn’t need to take notes, because Mr. Forman did not ask him to make a report. Whether this is because, as Mr. Forman testified, Dr. Montez only reviewed photographs and files from Dr. Choi and Law Enforcement, is debated by the two. Dr. Montez testified to actually examining Benjamin Kingan’s entire body. However, when reviewing photographs and files it stands to reason that one can re-review these pieces of evidence. When performing an examination of a child’s body one cannot. Put simply, it would be common sense to take notes on something you would not be able to revisit.
When Curbside Counsel to an autopsy becomes the prosecutions rebuttal witness, and a Non-Board-Certified witness at that, justice is in danger of being denied. Not taking notes of an ‘alleged’ examination merely because a Deputy-Coroner purportedly said not to, might explain why Dr. Montez had not sat for his Board-Certification test. Whilst Dr. Montez testified that he had “very vivid memories of examining Benjamin, You don’t forget kids.” to explain his being able to recount Benjamin’s injuries nearly 3 years later at trial, notes should have been taken. Attorney Paul De Luca had no way of knowing what was coming via Dr. Montez’s testimony.
The beauty of trial transcripts is that they do not lie. What is contained within them may indeed be lies, but the transcripts themselves are verbatim, bar stenographer error. Mr. Forman’s and Dr. Montez’s polar opposite accounts of what occurred on January. 16, 2009 regarding whether Dr. Montez physically examined Benjamin Kingan or not, stand between perjured testimony, or truthful testimony. Mr. Forman testified that Dr. Montez only reviewed the photographs and files of Benjamin Kingan. Dr. Montez testified that he examined Benjamin Kingan’s body.
Dr. Montez testified that he “saw the fracture itself.”
Dr. Montez testified that “he touched the inside part of the skull where the edges of the skull fractured were not completely together.”
Dr. Montez testified: “You could feel a ridge there.”
Your words Dr. Montez, not mine. Trial transcripts don’t lie. People do though.
If anyone has any questions or queries please don’t hesitate to contact me via either:
email: firstname.lastname@example.org or twitter: JamesDidcock@51kikey
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