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#459 Jason Flom with Melissa Calusinski · Wrongful Conviction

0:02
Speaker 1: January fourteenth, two thousand and nine, was an unremarkable day
0:06
Speaker 1: at a daycare center in Lincolnshire, Illinois, until the afternoon
0:12
Speaker 1: when a daycare provider named Melissa Kallyauzinski called out to
0:16
Speaker 1: her coworkers for help. A sixteen month old boy in
0:20
Speaker 1: her care had become unresponsive. Nine on one was called
0:25
Speaker 1: CPR was performed, but the infant never regained consciousness. After
0:30
Speaker 1: two autopsies, a forensic pathologist reported a rear skull fracture
0:35
Speaker 1: and massive bleeding that he believed were caused by blunt
0:38
Speaker 1: Ford's head drama, and after a fourteen hour interrogation, Melissa
0:43
Speaker 1: told investigators what they wanted to hear, which sent her
0:46
Speaker 1: away for thirty one years. But this is wrongful conviction.
0:57
Speaker 1: Wrongful conviction has always given voice to innocent people in prison,
1:01
Speaker 1: and now we're expanding that voice to you. Call us
1:05
Speaker 1: at eight three three two o seven four six sixty
1:08
Speaker 1: six and tell us how these stories make you feel
1:10
Speaker 1: and what you've done to help the cause, even if
1:13
Speaker 1: it's something as simple as telling a friend or sharing
1:16
Speaker 1: on social media, and you might just hear yourself in
1:19
Speaker 1: a future episode. Call us eight three three two oh
1:23
Speaker 1: seven four six sixty six. Welcome back to Wrongful Conviction.
1:36
Speaker 1: I don't even know if I'm ready for this one,
1:39
Speaker 1: because this case just hurts my heart. It's an incredible
1:43
Speaker 1: story of a wonderful young woman who has been chewed
1:48
Speaker 1: up and spit out by a system that is well
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Speaker 1: unfortunately designed to do just that. And I'm talking about
1:55
Speaker 1: Lissa Kyle Yazinski. Melyssa, thanks for being here. I'm happy
1:58
Speaker 1: you're here, but I'm sorry you're here under these circumstances.
2:01
Speaker 2: Thank you for having.
2:02
Speaker 1: Me and with Melissa today. Kathleen Zelner, as many of
2:06
Speaker 1: you may know, one of the most accomplished criminal defense
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Speaker 1: appellent attorneys in the country. She's been responsible for dozens
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Speaker 1: of exonerations, including some you've heard about on the show
2:20
Speaker 1: like Ryan Ferguson. Kathleen. I'm so excited that you're here.
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Speaker 3: Thank you. It's a great opportunity.
2:26
Speaker 1: This case is one of the more obvious wrongful convictions
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Speaker 1: we've ever seen, and it involves a false confession, junk science,
2:33
Speaker 1: corrupt practices, lying, compromised witnesses, and it goes downhill from there.
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Speaker 1: This is a thirty one year sentence of a young
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Speaker 1: woman who was working in I think what we could
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Speaker 1: all agree is a noble profession right doing daycare, and
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Speaker 1: she was almost certainly Is it fair to say, Kathleen,
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Speaker 1: she was convicted of a crime that never happened.
2:56
Speaker 3: Yes, this is not a murder. This is just a
2:59
Speaker 3: complet botched forensic case.
3:04
Speaker 1: This case is similar to a shaken baby syndrome case,
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Speaker 1: in which a child succumbs to various complications that are
3:10
Speaker 1: assigned both a violent cause and an assailant. The most
3:13
Speaker 1: recent caregiver in this case, that's Melissa, who never even
3:17
Speaker 1: got close to being in trouble before this incident, but
3:20
Speaker 1: rather led a quiet life growing up in a loving
3:23
Speaker 1: family and a working class suburb of Chicago.
3:26
Speaker 2: I grew up in Carpentersville. I mean, it's just your
3:29
Speaker 2: typical suburban neighborhood. My parents' names are Paul and Shurrel.
3:35
Speaker 2: Still live in the same house. I'm the youngest of five.
3:39
Speaker 2: I have two older half brothers, my middle sister who's
3:43
Speaker 2: a year older than me, and Crystal. Me and her
3:46
Speaker 2: kind of did the same thing growing up. She babysat,
3:49
Speaker 2: I babysat We Love Children.
3:52
Speaker 1: Melissa got the chance to work at this daycare center.
3:55
Speaker 1: It was called the Minnie Sabidi in Lincolnshire, which was
3:58
Speaker 1: a relatively Affluich Chicago suburb. Right.
4:01
Speaker 2: I ended up going to the Arlington Heights one for
4:06
Speaker 2: majority of the time that I worked for many sube.
4:10
Speaker 2: When I transferred to the one in Lincolnshire, my sister
4:14
Speaker 2: was working there and my nephew was there. He was
4:17
Speaker 2: just a baby. The children made my day. I didn't
4:20
Speaker 2: even care if late I had baby pew coming. Yeah,
4:24
Speaker 2: it smelled, but I mean I still loved what I did.
4:27
Speaker 1: How this begins is that there was a young child
4:31
Speaker 1: there named Benjamin Kingen. What do we know about the
4:35
Speaker 1: pre existing conditions that now have come to life?
4:38
Speaker 3: In October of two thousand and eight, Melissa hadn't even
4:42
Speaker 3: started working there and there was an incident at the
4:45
Speaker 3: daycare center. That incident was totally concealed from the parents.
4:50
Speaker 3: It was not written up, the word was put out
4:52
Speaker 3: by management. Nobody was to really talk about it. They
4:56
Speaker 3: were playing a game and one of the teachers aides
5:00
Speaker 3: had a plastic bat and was witnessed swinging the bat
5:05
Speaker 3: and they were throwing this plastic ball and she accidentally
5:09
Speaker 3: hit Ben in the back of the head. That manifested
5:14
Speaker 3: itself in a really goose egg sized lump on his head,
5:19
Speaker 3: But when he was taken to his pediatrician, the mother
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Speaker 3: didn't know the circumstances. She just thought maybe he was
5:26
Speaker 3: a headbanger because he had some stomach problems, so he'd
5:30
Speaker 3: throw himself back on the floor. So the mother had
5:32
Speaker 3: no idea the severity of the blow, so when she
5:36
Speaker 3: took him to a pediatrician, she minimized what happened, and
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Speaker 3: the pediatrician opted not to do a CT scan, But
5:44
Speaker 3: that subdual heimatoma, that pre existing injury, was there all
5:49
Speaker 3: those months and tragically resulted in his death from a
5:53
Speaker 3: subsequent incident where he banged his head.
5:57
Speaker 1: Pediatricians regularly monitor the height, weight, and the head circumference
6:01
Speaker 1: of infants and toddlers. Before this incident in October two
6:04
Speaker 1: thousand and eight, both Ben and his twin sister's head
6:07
Speaker 1: circumferences were in the fiftieth percentile. However, leading up to
6:11
Speaker 1: the day of Ben's tragic passing, Ben's had rapidly expanded
6:15
Speaker 1: into the ninety fifth percentile by January fourteenth, two thousand
6:19
Speaker 1: and nine.
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Speaker 3: Yeah, so January fourteenth of two thousand and nine. Ben's
6:25
Speaker 3: mother brings him to the daycare center, but he has
6:28
Speaker 3: been at home for two days and he's done some
6:33
Speaker 3: projectile vomiting. He's lethargic, which is a classic sign of
6:38
Speaker 3: a head injury head trauma. She brings him in because
6:41
Speaker 3: she thinks he's feeling better. And so Melissa noticed that
6:44
Speaker 3: he seemed a little tired, but nothing that really stood
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Speaker 3: out to her.
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Speaker 2: I mean, it was just a normal, usual day. They
6:51
Speaker 2: were playing most of the day, had snacked and lunch.
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Speaker 2: It was me and Nancy that day that afternoon, like
7:00
Speaker 2: after nap, So just went to see my sister, my nephew.
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Speaker 3: Significantly, Melissa leaves the room and it's probably gone for
7:10
Speaker 3: twenty minutes. The teacher's aide, Nancy Kallinger, who was in
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Speaker 3: the room before Melissa came back, she said that he'd
7:18
Speaker 3: thrown himself back very forcefully and hit his head on
7:21
Speaker 3: the floor before Melissa came back in the room. When
7:24
Speaker 3: she returns, Ben is in his bouncy chair, and she
7:29
Speaker 3: notices that he's not responding to his name, and then
7:34
Speaker 3: just a minute or so later, she notices kind of
7:37
Speaker 3: an orange colored foam coming out of his nose and
7:39
Speaker 3: his mouth.
7:40
Speaker 2: Yeah. When I went over to him, he was just
7:43
Speaker 2: in his chair. I went to go get help immediately
7:46
Speaker 2: when I didn't get a respond, so I picked my
7:49
Speaker 2: head out, left the door open, of course, and my
7:53
Speaker 2: sister came running.
7:54
Speaker 3: Her sister comes in another aid. They render CPR. So
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Speaker 3: Melissa is only back in that room for a couple
8:02
Speaker 3: of minutes, and even the state pathologists testified well by
8:08
Speaker 3: the time he was unresponsive, this injury had to have
8:11
Speaker 3: occurred thirty minutes before or all the way up to
8:14
Speaker 3: three hours. He could not go from being alert and
8:19
Speaker 3: responsive to this almost comatose condition in the amount of
8:23
Speaker 3: time that Melissa was in the room, so then nine
8:26
Speaker 3: to one one is called.
8:28
Speaker 1: Of course, we now know that a child can experience
8:30
Speaker 1: potentially up to seventy two hours of lucidity after a
8:34
Speaker 1: traumatic event before succumbing to the symptoms that can arise
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Speaker 1: from head trauma, for example intracranial and retinal bleeding as
8:42
Speaker 1: well as brain swelling. And who knows what was going
8:44
Speaker 1: on during the three days leading up to his tragic passing,
8:47
Speaker 1: But if there was another injury in addition to the
8:50
Speaker 1: one reported by Nancy Kalinger, it could have been as
8:53
Speaker 1: innocuous as a short fall that could have caused a
8:57
Speaker 1: rebleed of his previous head injury, and a slow, invisible
9:00
Speaker 1: creep towards unconsciousness.
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Speaker 3: It was just chaos.
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Speaker 2: We took the kids next door back into the infant
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Speaker 2: room so the paramedics can do what they do, and
9:09
Speaker 2: I was just following because it's like what happened.
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Speaker 3: He never regains consciousness. They take him in and he's
9:18
Speaker 3: pronounced dead, and then an autopsies performed by doctor Choi.
9:22
Speaker 1: There were two autopsies, right, which is unusual.
9:25
Speaker 3: Yes, very In fact, the cases I've had where there's
9:29
Speaker 3: actually not a murder, there's always two autopsies. So there's
9:33
Speaker 3: the first one where the pathologist decides, well, the case
9:37
Speaker 3: of death doesn't clear, it's undetermined. Then there's police pressure,
9:42
Speaker 3: and then the second one. Suddenly there's a homicide. And
9:44
Speaker 3: that's what happened in this case. Choi was pressured.
9:48
Speaker 1: Yeah, it's like we didn't like the first conclusion, go
9:50
Speaker 1: get us a different one. While doctor Choi was instructed
9:54
Speaker 1: to do a second autopsy, detectives return to the Mini
9:57
Speaker 1: Subie daycare to find Melissa.
10:00
Speaker 3: I barely got.
10:00
Speaker 2: Any sleep, but the next morning I went to work.
10:03
Speaker 2: They were all there, and the way they took me out,
10:07
Speaker 2: I had each detective basically standing side by side, super
10:12
Speaker 2: close to me, and then I had one behind me,
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Speaker 2: and I remember Detective Hide telling me we need to
10:20
Speaker 2: ask you some more things and we need you to
10:22
Speaker 2: come with us. But I didn't feel like I had
10:25
Speaker 2: a choice when they were surrounding me.
10:28
Speaker 1: Melissa was eventually taken to Lincolnshire PD, where she endured
10:32
Speaker 1: fourteen hours of interrogation without her parents or an attorney.
10:35
Speaker 1: But importantly, there were other factors at play that made
10:38
Speaker 1: Melissa more vulnerable to police pressure.
10:41
Speaker 2: They got sexually assaulted back in two thousand and six, and.
10:44
Speaker 3: She had a cute post traumatic stress. Her head was
10:49
Speaker 3: covered with a blanket, so she was like super clausterphobic
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Speaker 3: and had PTSD. That condition was so bad that it
11:00
Speaker 3: showed up years later when I just had doctor Westfall
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Speaker 3: from Yale forensic psychiatrist do a workup of Melissa, and
11:11
Speaker 3: they reported back to me that she had unresolved PTSD.
11:16
Speaker 3: They were tracing back to the sexual assault. Well, she
11:20
Speaker 3: had reported it and the perpetrator had some connection to
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Speaker 3: the police department, and there were no charges brought against him.
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Speaker 1: In addition, subsequent IQ and verbal testing suggests that Melissa's
11:33
Speaker 1: mental acuity also made her more susceptible to pressure from authority. Figures.
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Speaker 3: Yeah, she's trapped in the room with these two officers
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Speaker 3: who are incredibly aggressive with her. They got her wedged
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Speaker 3: into this corner. And the thing I think that's most
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Speaker 3: striking to me in her interrogation that goes on for
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Speaker 3: hours is how many times she denies having done anything.
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Speaker 1: Nine at least that we've counted, right, seventy nine times
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Speaker 1: she says, no, I didn't do it.
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Speaker 2: I know I didn't do anything wrong. And it's just
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Speaker 2: so crazy because they keep pressing and pressing. They'll put
12:10
Speaker 2: you in a little room and mat press and pressed
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Speaker 2: like the world is crushing you, and you can't get
12:17
Speaker 2: out of it until you tell them what they want
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Speaker 2: to hear, because for people like me, there is no
12:23
Speaker 2: right answer. They want their answer.
12:34
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12:50
Speaker 3: During Melissa's interrogation, Joy is performing the second autopsy and
12:57
Speaker 3: so the officers keep leaving the end interrogation to go
13:01
Speaker 3: and talk to him, and that there's other officers present
13:05
Speaker 3: at the autopsy, which they should actually never do that
13:08
Speaker 3: because then the pathologist feels extremely pressured.
13:12
Speaker 1: There were no cuts or obvious wounds or serious bruising,
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Speaker 1: but after the second autopsy, doctor Troy ruled Bend's death
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Speaker 1: a homicide. He said that there was intracranial bleeding followed
13:24
Speaker 1: by something that appears to not have been supported by
13:26
Speaker 1: the X rays, that Ben had a skull fracture from
13:29
Speaker 1: blood for's ed trauma.
13:30
Speaker 3: There's not a fracture that showed up on the clear
13:34
Speaker 3: X rays, and there was bleeding. Doctor Troy, he can't
13:39
Speaker 3: see that fracture on the X ray, but he thinks
13:42
Speaker 3: he can see it visually. The whole history of the
13:45
Speaker 3: prior injury that caused this potential for massive bleeding existed
13:52
Speaker 3: in October and was undetected, and then he misses it
13:56
Speaker 3: at autopsy and then gets fixated on what he thought
14:00
Speaker 3: it was a skull fracture and that there had to
14:02
Speaker 3: be this tremendous blow to Ben's head. Well, subsequent pathologist
14:08
Speaker 3: have said no, no, that's an accessory suture. That's not
14:12
Speaker 3: a skull fracture. There wasn't any tremendous blow to his
14:15
Speaker 3: head accessories.
14:17
Speaker 1: Skull sutures are developmental anomalies which typically occur while the
14:21
Speaker 1: soft spots of a young child's skull solidified during the
14:24
Speaker 1: first twenty four months. So while X rays are typically
14:28
Speaker 1: a better assessment of fractures or sutures than the naked eye,
14:31
Speaker 1: doctor Choi chose or was pressured to trust his naked
14:35
Speaker 1: eye instead to assess the source of the intracranial bleeding.
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Speaker 3: There was fresh blood that it comes from the old injury.
14:45
Speaker 3: It's very similar to the football player that has the concussion,
14:48
Speaker 3: then goes back in and is playing and has a
14:51
Speaker 3: slight head tap and suddenly he's dead. You've got an
14:55
Speaker 3: aggravation of the underlying layers of the brain. In this case,
14:59
Speaker 3: there was barachnoid subgalile bleeding, but it still wasn't massive bleeding,
15:04
Speaker 3: and there was also old blood. So that's why doctor
15:08
Speaker 3: Choi in the first autopsy, it wasn't clear at all
15:12
Speaker 3: that this was a homicide.
15:14
Speaker 1: There was no reason that a competent person in his
15:17
Speaker 1: position could have or should have made these mistakes or again,
15:21
Speaker 1: maybe they weren't mistakes. Maybe he was just cow tewing
15:24
Speaker 1: to the men in blue that were in the room
15:26
Speaker 1: with him, which, again, that's outrageous. It's fucking outrageous that
15:29
Speaker 1: they're allowed to like bird dog this situation. Years later,
15:33
Speaker 1: doctor Joy admitted that he missed the previous injury during
15:35
Speaker 1: the autopsy, which should observed as a compelling explanation for
15:39
Speaker 1: the bleeding, especially in the absence of any exterior injuries.
15:43
Speaker 1: But the result of this faulty forensic exam was then
15:47
Speaker 1: brought into the interrogation room.
15:49
Speaker 3: So it's the classic read technique where you start out
15:53
Speaker 3: she's denying, denying, denine. Then you tell her none of
15:56
Speaker 3: that's true. You've just talked to the pathologists. He had
15:59
Speaker 3: this horror head injury equivalent to being thrown off a
16:02
Speaker 3: three story building. She was the one in the room
16:05
Speaker 3: with him when he became unresponsive. It has to be her,
16:09
Speaker 3: and they just keep pounding on her.
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Speaker 2: They were just like, let's just cut the bs, let's
16:13
Speaker 2: cut to it. All of us are exhausters. Why don't
16:15
Speaker 2: you just tell us so we can all go home.
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Speaker 2: I'm just wanted to get home, tell my parents what happened.
16:20
Speaker 2: And go from there and like, Okay, they want to
16:25
Speaker 2: hear what they want to hear, forget what I'm saying.
16:27
Speaker 2: So that's why I said what I said. Everything they
16:31
Speaker 2: said I said.
16:33
Speaker 3: I would say eighty five percent of the interrogation is
16:36
Speaker 3: them talking. They believe that she just snapped and threw
16:41
Speaker 3: him down. They tell her exactly what to say. Did
16:46
Speaker 3: they show her what to do? Like here, take this,
16:50
Speaker 3: they gave her some little teddy bear. Throw that down
16:52
Speaker 3: on the floor really hard. He's facing out and she
16:55
Speaker 3: throws him on the floor. The problem is the injuries
16:58
Speaker 3: in the back of the head. But once got it,
17:00
Speaker 3: they ran with it and they're couching it in. If
17:03
Speaker 3: you haven't done anything really wrong, you'll get to go home.
17:07
Speaker 3: I mean, she actually leaves the interrogation and says, I've
17:11
Speaker 3: got to get home to my puppy and I'm going
17:14
Speaker 3: to warm the car up.
17:16
Speaker 2: I literally thought I was going home to see my puppy.
17:18
Speaker 2: I had my keys with the prestarter, I had my
17:21
Speaker 2: phone in my hand. I was literally thought I was
17:24
Speaker 2: going home to see my family and my dog. But
17:27
Speaker 2: it was crazy when they took everything out of my hand.
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Speaker 1: Neither the false confession nor the atops who lined up
17:34
Speaker 1: with reality. Yet Melissa has not seen the outside since
17:37
Speaker 1: January fifteenth of two thousand and nine.
17:40
Speaker 2: After everything had happened. I do remember being in the
17:44
Speaker 2: back of a police card and saying I'm innocent. I
17:47
Speaker 2: did not do this, and I kept calling them and
17:50
Speaker 2: I kept telling them there is a big mistake, and
17:53
Speaker 2: they were not listening to me. At hall, I felt
17:58
Speaker 2: like this tiny little mouth because it's like I'm telling everybody,
18:02
Speaker 2: like there's a big mistake. I did not do this,
18:05
Speaker 2: And it was like a nightmare. There is a big mistake.
18:10
Speaker 1: She immediately we can't at her story, but it doesn't matter.
18:12
Speaker 1: You can't put that genie back in the bottle. So
18:16
Speaker 1: was she able to bond out or was she stuck
18:17
Speaker 1: in jail awaiting a trial that was two years away.
18:21
Speaker 3: She never bonded out. She was stuck in jail and
18:24
Speaker 3: the parents had come to me to do the trial.
18:27
Speaker 3: But I was in the middle of Kevin Fox's appeal
18:31
Speaker 3: from his civil rights verdict, and so I recommended a
18:36
Speaker 3: very accomplished criminal defense attorney. Paul de Luca, who had
18:40
Speaker 3: been a prosecutor in Cook County, has been a defense
18:43
Speaker 3: attorney for years, has done dozens of death penalty cases
18:47
Speaker 3: and all of that. And then he brought in another
18:49
Speaker 3: attorney who was equally experienced, and they became the trial attorneys.
18:54
Speaker 3: So Paul de Luca tried to get the confession tossed out,
18:59
Speaker 3: and he brought in Richard Leo, and they did my
19:02
Speaker 3: Q testing, verbal testing, and they did all the right things,
19:06
Speaker 3: and the judge would not let any of that evidence in.
19:10
Speaker 3: Remember this was in twenty eleven. He said that at
19:13
Speaker 3: that point the case law was not strong enough to
19:16
Speaker 3: justify letting in a false confession expert. So all that
19:21
Speaker 3: workup was done her IQ. The problem with the verbal testing.
19:25
Speaker 3: The one thing though that they knew about but they
19:28
Speaker 3: didn't pursue. And Paul's a totally honest person. He's given
19:32
Speaker 3: me an affidavit to this effect, was the sexual assault
19:36
Speaker 3: and unresolved PTSD. Well, Paul de Luca knew that, but
19:40
Speaker 3: you know, he was focused on Richard Leo and trying
19:44
Speaker 3: to get all of that in. But they should have
19:46
Speaker 3: done that. They simply did not know that that, combined
19:50
Speaker 3: with her language impairments, was just fatal to her that day,
19:56
Speaker 3: being in that room, in that corner with these people.
20:00
Speaker 1: So, despite the science of false confessions as well as
20:04
Speaker 1: how susceptible Melissa was to police pressure, her false statement
20:08
Speaker 1: was admitted and the defense rebuttal evidence and the expert himself,
20:13
Speaker 1: Richard Leo, were denied. Additionally, before her November twenty eleven trial,
20:18
Speaker 1: Melissa's defense was provided with a digital image of Ben's
20:21
Speaker 1: skull X ray. But you know how a file could
20:24
Speaker 1: be saved in a different format which can affect the
20:26
Speaker 1: quality of the content. Well, this image was so compressed
20:30
Speaker 1: that it simply wasn't legible, leaving the defense experts at
20:34
Speaker 1: a big disadvantage. Doctor Shaku Tease testified about both the
20:38
Speaker 1: unreadable images as well as doctor Troy's shoddy work.
20:42
Speaker 3: Doctor Troy didn't take samples of the skull fracture, They
20:46
Speaker 3: didn't do the slides that he should have done, So
20:49
Speaker 3: doctor Tease, she was saying there was no definite proof
20:52
Speaker 3: of the fracture and the X rays were totally unreadable,
20:57
Speaker 3: and she thought it could have been a suture. Ben
21:00
Speaker 3: was only sixteen months old, so his skull was still
21:04
Speaker 3: in that formative you know, where you have the little
21:06
Speaker 3: soft spot and the skull is more vulnerable, and so anyway,
21:10
Speaker 3: te said this could be an accessory suture that's part
21:13
Speaker 3: of the final skull formation, and that Troy had just
21:17
Speaker 3: mistaken it for a fracture. Then Paul di Luca brought
21:20
Speaker 3: in doctor Leedsma, who's a renowned pediatric physician in Chicago,
21:26
Speaker 3: and he tried to convince the jury this was a
21:28
Speaker 3: rebleed of the prior injury.
21:31
Speaker 1: The defense also called the other teacher's aide, Nancy Kalinger.
21:35
Speaker 3: She claimed that she'd taken him to the changing table
21:39
Speaker 3: and he didn't need his diaper change, and that she
21:41
Speaker 3: set him down on the floor, and she claimed that
21:45
Speaker 3: he and Melissa's not in the room, that he threw
21:48
Speaker 3: himself back really forcefully.
21:50
Speaker 1: Which directly supports the rebleed theory. Then the state presented
21:55
Speaker 1: an alleged forensic pathologist named Manny Montez, who said that
21:59
Speaker 1: he had felt the fracture with his own hands, which,
22:01
Speaker 1: according to the recently resurfaced raw digital images of Ben's skull,
22:06
Speaker 1: appears to have been a total fabrication.
22:09
Speaker 3: Totalized Yes, So what happened was the state sprung doctor
22:13
Speaker 3: Montes on the defense in rebuttal and it was very
22:18
Speaker 3: unfortunate they didn't have a counter to Montes, but he
22:21
Speaker 3: gave this Academy Award performance and his credentials. He was
22:26
Speaker 3: never board certified. But he's the guy that comes in
22:31
Speaker 3: and he's felt the skull and he's manipulated it and
22:34
Speaker 3: tells the jury, oh my god, there's this through and
22:36
Speaker 3: through fracture. That was a tremendous blow. So that's the
22:40
Speaker 3: last thing the jury hears.
22:42
Speaker 1: Prosecutors mentioned the skull fracture more than thirty times, so
22:45
Speaker 1: they knew they had something that couldn't be beat. Right.
22:48
Speaker 1: They probably had a meeting in the back room somewhere
22:50
Speaker 1: and said, hey, just keep go after skull practice, skull fractors.
22:53
Speaker 1: Keep hitting that point right, and you could probably they
22:56
Speaker 1: could probably see the reaction in real time that the
22:58
Speaker 1: jurors just probably wanted to throw up thinking about this
23:01
Speaker 1: terribly violent act. So at the end of the day,
23:04
Speaker 1: you've got lay people on the jury. There's competing medical experts.
23:08
Speaker 1: It's almost like a toss up, and if it's a
23:10
Speaker 1: toss up, they're going to default to. Well, it's easier
23:14
Speaker 1: to reconcile the idea that something horrible was done by
23:17
Speaker 1: a bad person as opposed to the idea that a
23:20
Speaker 1: baby could have just died, because if that's true, then
23:23
Speaker 1: your baby could just die.
23:25
Speaker 3: I've done a lot of medical malpractice with parents who've
23:28
Speaker 3: lost a child. I think when parents lose a child,
23:31
Speaker 3: they tend to blame themselves. I think the mother who
23:35
Speaker 3: may well have had a malpractice suit against the pediatrician
23:39
Speaker 3: who didn't do the CT scan, in her mind, probably
23:44
Speaker 3: blamed herself to some extent, although it was the pediatrician's fault.
23:49
Speaker 3: So as you're saying, one thing that alleviates some of
23:53
Speaker 3: that guilt is to have a clear bad guy, a
23:57
Speaker 3: person you can blame this on, like this didn't have
24:00
Speaker 3: anything to do with October. This had to do with
24:03
Speaker 3: this young woman and her vile temper.
24:07
Speaker 2: It was just heartbreaking with me, and then how these
24:11
Speaker 2: people lied to them to make it look like something
24:14
Speaker 2: when it isn't. You're qu in innocent personal ways. Thirty
24:18
Speaker 2: one years my heart literally went up to my mouth
24:40
Speaker 2: when I went to Duwai. It was scary a little bit,
24:43
Speaker 2: and it was weird. I was with hermid with people
24:47
Speaker 2: I did not know. But then eventually the women that
24:52
Speaker 2: I met they made it easier and we kind of
24:56
Speaker 2: stuck together and they kind of stuck up for me
24:59
Speaker 2: to it wasn't as bad as what I thought it
25:03
Speaker 2: was because I know that I'm not a troublemaker and
25:07
Speaker 2: I don't cause albums. So by me staying quiet and
25:11
Speaker 2: kind of saying to myself, which I did in the county,
25:15
Speaker 2: I did here as well. So I was cautious that
25:19
Speaker 2: everything I was doing it made things easier. And I
25:24
Speaker 2: just remember Paul telling me that this is not over,
25:29
Speaker 2: like you're not going to do thirty one years, it's
25:32
Speaker 2: just the number. Don't stress out about this. And then
25:36
Speaker 2: when they told me that Kathleen, when I got Kathleen
25:39
Speaker 2: zelln there, I just kind of knew like I just
25:43
Speaker 2: had to kind of suck it up my emotions and
25:46
Speaker 2: set aside to be strong.
25:48
Speaker 3: So our first involvement is in doing the direct appeal,
25:53
Speaker 3: and we go to the second District, which is very conservative,
25:56
Speaker 3: but we've got no rebuttal to the confession, and because
26:00
Speaker 3: all of the evidence has been blocked by the trial judge,
26:04
Speaker 3: and Illinois is still contemplating whether false confession expert should
26:08
Speaker 3: be allowed to testify, and the first time that Illinois
26:13
Speaker 3: allows that is in federal court. The Seventh Circuit in
26:16
Speaker 3: the northern district, so the state courts are lagging behind.
26:20
Speaker 3: So the court just pretty much does a knee jerk
26:24
Speaker 3: sort of opinion. Know the proofs there beyond a reasonable doubt,
26:28
Speaker 3: and I think we'd already started really reinvestigating, finding out
26:32
Speaker 3: the history of the injury, talking to doctor Nancy Jones,
26:36
Speaker 3: who was a renowned pathologist. She's now deceased, almost always
26:41
Speaker 3: for the state, and she's the one who thought it
26:44
Speaker 3: was an access researcher. We got doctor Choi to recant
26:47
Speaker 3: his testimony. Doctor Chroi retired. I'm not even sure if
26:51
Speaker 3: he's still alive, but I had other cases with him,
26:55
Speaker 3: things where he just made mistakes. We approached him and said,
27:00
Speaker 3: my god, there's an underlying injury here that you missed
27:03
Speaker 3: on autopsy. So he agreed, yeah, there was Gavin affidavit,
27:09
Speaker 3: but he was always pressured by the state. They went
27:12
Speaker 3: back and had him modify and say, well, I missed
27:14
Speaker 3: it but it wasn't important. He just capitulated when pressure
27:19
Speaker 3: was put on him. But anyway, Doctor Rudd then stepped
27:22
Speaker 3: in discovered the tiff image. So when Paul de Luca
27:28
Speaker 3: was representing Melissa, he was given these unreadable JPEG images
27:33
Speaker 3: of the skull. It was practically like a black outline
27:38
Speaker 3: of the head. There's no possible way you could have
27:40
Speaker 3: detected whether there was a fracture there. That's why the
27:44
Speaker 3: state then brought in and sandbagged him with doctor Montez.
27:48
Speaker 3: That was very thought out. So doctor Rudd discovered that
27:52
Speaker 3: on the corner's computer, other than the JPEG images, there
27:56
Speaker 3: were these completely clear Tiff images, and the Tiff images
28:02
Speaker 3: showed this beautiful picture of Ben's skull and there was
28:06
Speaker 3: no fracture. Then we got a forensic computer expert, we
28:10
Speaker 3: got the metadata and you could see that someone had
28:13
Speaker 3: manipulated the images of the skull.
28:17
Speaker 1: The Tiff images are the uncompressed raw digital images of
28:20
Speaker 1: Ben's skull, which were vital to exposing doctor Joy's faulty opinion,
28:24
Speaker 1: but were not made available to the defensive trial. Since then,
28:29
Speaker 1: a forensic computer expert has proven that someone had to
28:32
Speaker 1: have exported the crystal clear Tiff images as JPEGs, opened
28:36
Speaker 1: them in a new program, and saved them at an
28:38
Speaker 1: even lower bit rate, rendering them useless to another pathologist
28:43
Speaker 1: who with them could have shown that there was no
28:47
Speaker 1: through and through fracture, but rather that there were accessory
28:51
Speaker 1: sutures as well as a rebleed of a previous injury.
28:55
Speaker 3: They knew they'd pressured the pathologists. I mean, it was
28:58
Speaker 3: so extreme. When doctor Rudd came along years later, doctor
29:02
Speaker 3: Troy changed the death certificate to say it wasn't a homicide.
29:07
Speaker 3: So the death certificate now does not say it was
29:10
Speaker 3: a homicide. It says it was undetermined.
29:12
Speaker 1: That's unfucking realize she's in prison for something that was
29:15
Speaker 1: not a homicide.
29:16
Speaker 3: So with all of that, we came back to Lake
29:19
Speaker 3: County to the trial judge. The judge did everything to
29:25
Speaker 3: try to ignore the new images that we discovered. He
29:30
Speaker 3: accused our computer expert of manipulating the data. Nancy Jones
29:35
Speaker 3: became critically ill with cancer. She died about a month
29:39
Speaker 3: after there, and she was too ill to come in
29:41
Speaker 3: and testify. So we brought in doctor Zimmermann, and he
29:45
Speaker 3: was head of the National Trauma Abuse Council in the
29:50
Speaker 3: United States, probably the leading expert in the country radiologist
29:55
Speaker 3: in detecting skull fractures that were the result of an
30:00
Speaker 3: intentional act. He testified there wasn't a skull fracture. There
30:06
Speaker 3: would never be a skull fracture. The tiff images were
30:10
Speaker 3: clear there was no skull fracture, and that the confession
30:14
Speaker 3: of the thing with the little Teddy Bear being thrown
30:17
Speaker 3: down on his face did not match. The physical evidence
30:22
Speaker 3: did not match.
30:23
Speaker 2: Well.
30:23
Speaker 3: The judge just thought he had better understanding of the
30:28
Speaker 3: medicine and the radiology than doctor Zimmermann, so he just
30:31
Speaker 3: wasn't going to consider his testimony. So back we go
30:34
Speaker 3: to the appellate court. Now the judge couldn't get around
30:38
Speaker 3: the fact that Melissa had confessed, and then she thought
30:41
Speaker 3: it was a battle of the experts. They affirmed it.
30:43
Speaker 3: So then we come back again. New state's attorney takes over.
30:48
Speaker 3: He indicates he wants to meet with us, that they
30:51
Speaker 3: have serious questions about Melissa's conviction based on the computer
30:56
Speaker 3: evidence we presented. I hire Saul Cassen, who looks at
31:00
Speaker 3: the confession.
31:02
Speaker 1: Of course, Saulcassen is one of the foremost experts in
31:05
Speaker 1: the world on false confessions.
31:07
Speaker 3: Sawcassen had tracked the case for years, so he thought
31:11
Speaker 3: it was appalling. And then I hired the forensic psychiatrist
31:15
Speaker 3: from Yale and we just started over. So the state
31:20
Speaker 3: recommended a computer forensic company and said they would be
31:25
Speaker 3: very comfortable with their findings. I had all the computer
31:28
Speaker 3: analysis redone. They concluded my expert was spot on that
31:34
Speaker 3: the images had been manipulated, and they went even further
31:38
Speaker 3: and said they had been intentionally manipulated, that my expert
31:44
Speaker 3: in no way had altered any data, and they completely
31:48
Speaker 3: supported him. The experts from Yale have determined that the
31:53
Speaker 3: sexual assault should have been a major part of the trial.
31:57
Speaker 3: They've given me all of that information. And then of
32:00
Speaker 3: course I have Nancy Jones, Affid David, and I have
32:03
Speaker 3: an additional pathologist who's looked at said this was not
32:07
Speaker 3: a murder. This was not a murder. This was a
32:10
Speaker 3: child who had a severe head injury in October. That's
32:13
Speaker 3: why his head circumference increased so dramatically. This was not
32:17
Speaker 3: a murder. So in looking at it, we don't feel
32:20
Speaker 3: we'll get relief from the trial judge. It's the same
32:23
Speaker 3: trial judge. We have an action pending in federal court,
32:26
Speaker 3: but it's backlogged horribly. So we're going to go to
32:29
Speaker 3: Governor Pritzker with a clemency petition. I think that's our
32:33
Speaker 3: best avenue at this point.
32:35
Speaker 1: The good news is you have one of the best governors,
32:37
Speaker 1: and I believe that he will give this the attention
32:40
Speaker 1: it deserves. There's only one conclusion you can draw. I mean,
32:43
Speaker 1: this entire case has collapsed like a house of cards.
32:47
Speaker 1: There's nothing there. It's insane. So is there a call
32:51
Speaker 1: to action?
32:52
Speaker 3: I would encourage everyone to read our petition. I will
32:55
Speaker 3: post it on our website Kathleen t Zelner dot com.
32:59
Speaker 3: They'll be untached information in there for Governor Pritzker. If
33:03
Speaker 3: people feel persuaded by it and feel there's been a
33:06
Speaker 3: miscarriage of justice, I would strongly encourage them to write
33:10
Speaker 3: directly to him. I think it would be enormously helpful.
33:14
Speaker 1: Great, we'll put links in the episode description, and then
33:18
Speaker 1: with that we're going to turn to closing arguments, my
33:20
Speaker 1: favorite part of every episode, which is where I have
33:23
Speaker 1: the honor to thank each of you for joining us
33:26
Speaker 1: here on the show. And then I'm going to kick
33:29
Speaker 1: back in my chair, turn my microphone off, leave my
33:33
Speaker 1: headphones on, close my eyes, and just listen to anything
33:36
Speaker 1: else you want to share with me and our wonderful audience.
33:40
Speaker 3: So I would say to the audience that the way
33:44
Speaker 3: I imagine and think about this case is I feel
33:46
Speaker 3: as if I'm fighting for my daughter's life. He's about
33:50
Speaker 3: the same age as Melissa. I believe in the history
33:54
Speaker 3: of the cases I've had, I've had twenty three wrongful
33:57
Speaker 3: convictions resolved. This is probably the worst one. And it's
34:03
Speaker 3: hard to measure things, but I think it's because Melissa
34:07
Speaker 3: is probably one of the best people I've ever met
34:09
Speaker 3: in my life. She is a purely good person, and
34:14
Speaker 3: I think anyone that looks at this case should be
34:17
Speaker 3: outraged by the manipulation of the evidence to convict this
34:21
Speaker 3: poor young girl of the murder of a child, and
34:25
Speaker 3: the damage that's been done to her mentally. Having to
34:28
Speaker 3: cope with this is indescribable. And so it doesn't matter
34:34
Speaker 3: what I have to do. It does not matter how
34:36
Speaker 3: long this battle takes. We are not going to stop
34:40
Speaker 3: this battle. We are going to keep pounding on the
34:42
Speaker 3: doors of justice till someone opens them.
34:47
Speaker 2: If people are out there then know of my case.
34:51
Speaker 2: There's still time to do support letters on my vhas
34:54
Speaker 2: and basically just pray for me and my family and
34:58
Speaker 2: the other family as well. With the supporters that I
35:02
Speaker 2: hear from. It gives me strength and it helps me
35:05
Speaker 2: to stay strong. So just hearing from people through my
35:09
Speaker 2: family and then telling me and others is just very helpful.
35:14
Speaker 2: The support is just very uplisting for me. I just
35:19
Speaker 2: hope and pray that everything goes well, and I thank
35:22
Speaker 2: everybody sold so much from the bottomary heart of hearing
35:26
Speaker 2: this and hearing my story and seeing that I am
35:29
Speaker 2: innocent and they wrongfully convict me, and I just I'm
35:33
Speaker 2: just grateful for people that reach out. Thank you very much.
35:43
Speaker 1: Thank you for listening to Wrongful Conviction. You can listen
35:46
Speaker 1: to this and all the Lava for Good podcasts one
35:48
Speaker 1: week early by subscribing to Lava for Good Plus on
35:51
Speaker 1: Apple Podcasts. I want to thank our production team, Connor
35:54
Speaker 1: Hall and Kathleen Fink, as well as my fellow executive
35:57
Speaker 1: producers Jeff Kempler, Kevin Wartis, and Jeff Cleiburn. The music
36:01
Speaker 1: in this production was supplied by three time OSCAR nominated
36:04
Speaker 1: composer Jay Ralph. Be sure to follow us across all
36:07
Speaker 1: social media platforms at Lava for Good and at Wrongful Conviction.
36:11
Speaker 1: You can also follow me on Instagram at It's Jason Flahm.
36:14
Speaker 1: Wrongful Conviction is the production of Lava for Good Podcasts
36:17
Speaker 1: in association with signal Company number one