COMMENTARY: "A question of re-evaluating reasonable doubt" by columnist David Rutter, published by the Chicago Tribune on June 21, 2016;
GIST; Everybody wants justice for Melissa Calusinski just as much as they want justice for the little Deerfield boy who died in 2009 while in her care. Now there will be rehearing of old evidence and examination of what might be new evidence. That will determine if the Carpentersville woman gets a new trial in the daycare death of 16-month-old Benjamin Kingan. For almost everyone involved — including the child's grief-traumatized parents — the heartache seems to have no resolution. But doubt is a good place to start. The only place, really. The judge who presided over the Lake County jury that convicted Calusinski of first-degree murder in 2011 was sure enough in 2012 to sentence her to 31 years. That result was based on guilt beyond a reasonable doubt. But the same judge no longer is sure. How do we know this? If he were sure justice had been done then, Judge Daniel Shanes would not have needed to take any action now. Shanes has taken what might be the rarest course of any presiding judge. He wants to hear his case again, and he seems open to changing his mind.Presiding judges normally cringe even when their decisions are taken through the traditional appeals court process. Shanes heard all the evidence in 2011. He did not stop the trial and direct Calusinski be declared not guilty. If he had been as sure now as he was in 2011, he would need not reassess anything.By saying the evidentiary hearing should proceed, Shanes has validated palpable, actionable doubt. He could eventually rule for a new trial or simply reverse the original verdict and tell Calusinski to go home with her family.zConvince me, he's telling the lawyers. But, he says implicitly, there's a problem, and we can't ignore it. t's the sort of basic, reasonable, legally defined doubt that might require a "not guilty" verdict. Not allow it. Require it. We will see. There are several signs to indicate how sure Lake County prosecutors are about their task. They not only fiercely fought a retrial but also this evidentiary hearing, too. They are protesting to loudly, as well they might. Lake prosecutors bear the unfortunate scars of their recent sins, so their moral high ground is constructed on cascading quicksand. Lake County jurisprudence soon will be dragged to this required enlightenment. Prosecutors have fought every glimmer of doubt, every suggestion they botched the case as they have botched others. Now they claim to happily embrace an event they tried to quash from the beginning. Here's what is absolutely true in a case with contested arguments for almost every fact: There is doubt. Even the prosecutors know this. Very deep doubt that justice was done in 2009. Reasonable doubt about evidence the jury did not see, did not understand then. That doubt should have existed when Calusinski was convicted and sentenced to life in prison. The facts of the case are now confronted with valid alternatives about the X-rays and lengthy, manipulative interrogation she underwent that produced a confession. The centerpiece of the dispute is whether the child died of a skull fracture caused when he was deliberately dropped. And whether Calusinski was convinced by interrogators that she must have done it because there was no other good theory. But Lake County Coroner Dr. Thomas Rudd has supplied multiple ways the child may have died. Had Rudd been the coroner in 2009, the case might never have been tried. The X-rays used to convict Calusinski are in dispute, including whether the skull fracture was new, old or the result of the child's reported habit of striking his own head on hard objects. That skull fracture was mentioned 32 times in the trial. Rudd says those X-rays, and as yet unseen X-rays, do not show what prosecutors say, and there is no clear evidence anything Calusinski did caused the child's passing. Rudd even withdrew the original cause of death and changed it to "undetermined." He has offered up profound and reasonable doubt. Assistant State's Attorney Stephen Scheller said deep differences in interpreting the fracture in itself don't prove Calusinski's innocence. But no one has to prove Calusinski is innocent. If the judge decides the re-visited evidence means she gets a new trial, then the vocabulary changes. Calusinski is immediately transformed from a convicted murderer into an innocent-until-proved-guilty defendant.
Scheller will have to prove she is guilty. He probably already knows that task lies ahead."GIST; Everybody wants justice for Melissa Calusinski just as much as they want justice for the little Deerfield boy who died in 2009 while in her care. Now there will be rehearing of old evidence and examination of what might be new evidence. That will determine if the Carpentersville woman gets a new trial in the daycare death of 16-month-old Benjamin Kingan. For almost everyone involved — including the child's grief-traumatized parents — the heartache seems to have no resolution. But doubt is a good place to start. The only place, really. The judge who presided over the Lake County jury that convicted Calusinski of first-degree murder in 2011 was sure enough in 2012 to sentence her to 31 years. That result was based on guilt beyond a reasonable doubt. But the same judge no longer is sure. How do we know this? If he were sure justice had been done then, Judge Daniel Shanes would not have needed to take any action now. Shanes has taken what might be the rarest course of any presiding judge. He wants to hear his case again, and he seems open to changing his mind.Presiding judges normally cringe even when their decisions are taken through the traditional appeals court process. Shanes heard all the evidence in 2011. He did not stop the trial and direct Calusinski be declared not guilty. If he had been as sure now as he was in 2011, he would need not reassess anything.By saying the evidentiary hearing should proceed, Shanes has validated palpable, actionable doubt. He could eventually rule for a new trial or simply reverse the original verdict and tell Calusinski to go home with her family.zConvince me, he's telling the lawyers. But, he says implicitly, there's a problem, and we can't ignore it. t's the sort of basic, reasonable, legally defined doubt that might require a "not guilty" verdict. Not allow it. Require it. We will see. There are several signs to indicate how sure Lake County prosecutors are about their task. They not only fiercely fought a retrial but also this evidentiary hearing, too. They are protesting to loudly, as well they might. Lake prosecutors bear the unfortunate scars of their recent sins, so their moral high ground is constructed on cascading quicksand. Lake County jurisprudence soon will be dragged to this required enlightenment. Prosecutors have fought every glimmer of doubt, every suggestion they botched the case as they have botched others. Now they claim to happily embrace an event they tried to quash from the beginning. Here's what is absolutely true in a case with contested arguments for almost every fact: There is doubt. Even the prosecutors know this. Very deep doubt that justice was done in 2009. Reasonable doubt about evidence the jury did not see, did not understand then. That doubt should have existed when Calusinski was convicted and sentenced to life in prison. The facts of the case are now confronted with valid alternatives about the X-rays and lengthy, manipulative interrogation she underwent that produced a confession. The centerpiece of the dispute is whether the child died of a skull fracture caused when he was deliberately dropped. And whether Calusinski was convinced by interrogators that she must have done it because there was no other good theory. But Lake County Coroner Dr. Thomas Rudd has supplied multiple ways the child may have died. Had Rudd been the coroner in 2009, the case might never have been tried. The X-rays used to convict Calusinski are in dispute, including whether the skull fracture was new, old or the result of the child's reported habit of striking his own head on hard objects. That skull fracture was mentioned 32 times in the trial. Rudd says those X-rays, and as yet unseen X-rays, do not show what prosecutors say, and there is no clear evidence anything Calusinski did caused the child's passing. Rudd even withdrew the original cause of death and changed it to "undetermined." He has offered up profound and reasonable doubt. Assistant State's Attorney Stephen Scheller said deep differences in interpreting the fracture in itself don't prove Calusinski's innocence. But no one has to prove Calusinski is innocent. If the judge decides the re-visited evidence means she gets a new trial, then the vocabulary changes. Calusinski is immediately transformed from a convicted murderer into an innocent-until-proved-guilty defendant.
The entire commentary can be found at:
http://www.chicagotribune.com/suburbs/lake-county-news-sun/opinion/ct-lns-rutter-calusinski-reasonable-doubt-st-0621-20160620-story.html
See related story "Calusinski hearing delayed until next week at the link below; "Judge Daniel Shanes ordered
lawyers back to court Tuesday with a detailed list of witnesses that
both sides intend to call during a future evidentiary hearing for
Melissa Calusinski, 29, of Carpentersville. Calusinski was found guilty of
murder in 2011 in the death of a 16-month-old Deerfield boy at a
now-closed Lincolnshire day care. The attorneys were asked to have
that information in court Friday in order to establish how long the
evidentiary hearing would take. However, defense attorney Doug Johnson requested the delay in order to get the information. Calusinski, who did not attend
the court hearing, is serving a 31-year prison sentence after being
found guilty of throwing Benjamin Kingan to the floor at the Minee Subee
Day Care in the Park in Lincolnshire. After an appellate court upheld
the original guilty verdict, defense attorney Kathleen Zellner filed a
211-page new trial request in Lake County. In the document, she said a
second set of legible X-rays and proof the boy suffered a previous
injury were never explored at Calusinski's trial. Officials said Benjamin's head
swelled like "an old fashioned light bulb" due to the chronic
concussions he suffered, according to the court document, and not an
acute injury as pathologists previously had stated. However, prosecutors filed a
37-page motion to dismiss the request, claiming the new X-ray evidence
was actually old evidence defense attorneys had in their possession but
never electronically enhanced before the trial. Prosecutors also said the X-rays
do not change the jury's finding that Calusinski threw the boy to the
floor, which caused his death. If her murder conviction is
vacated, the state would need to give Calusinski a new trial. If Shanes
rules against Calusinski, she would have the option to appeal the case
to the state appellate court. Attorneys said the evidentiary hearing could take one to three days.
The date of that hearing is expected to be decided Tuesday."
http://www.dailyherald.com/article/20160708/news/160709215/
http://www.dailyherald.com/article/20160708/news/160709215/
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The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
http://www.thestar.com/topic/
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.
Please send any comments or information on other cases and issues of interest to the readers of this blog to:
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Harold Levy;
Publisher: The Charles Smith Blog;
