June 27, 2024 • 36 mins
On January 14, 2009, sixteen-month-old Benjamin Kingan died after being in daycare at a suburb outside of Chicago, IL. Despite no physical signs of abuse or injury, police took 22-year-old Melissa Calusinski, an employee at the daycare, in for extensive questioning. Melissa repeatedly told officers she had nothing to do with the baby’s death, but after nine hours of interrogation, she falsely confessed to throwing the baby on the ground. The state relied on the later disproven theory that Benjamin died from a skull fracture, junk science testimony from medical professionals, and Melissa’s false confession to sentence her to 31 years in prison for first-degree murder.
Write your letters of support for Melissa’s clemency petition to IL Governor Pritzker and send to:
attorneys@zellnerlawoffices.com
Letters are due by 7/8/2024
https://www.kathleentzellner.com/melissa-calusinski
https://www.facebook.com/groups/740709216037007/
We started the Wrongful Conviction podcast to provide a voice to innocent people in prison.
We want to hear your voices, too.
So call us at 833-207-4666 and leave us a message.
Tell us how these powerful, often tragic and sometimes triumphant, stories make you feel.
Shocked?
Inspired?
Motivated?
We want to know!
We may even include your story in a future episode.
And hey, the more of you that join in, the more power our collective voices will have.
So tell a friend to listen and to call us too at 833-207-4666
Wrongful Conviction is a production of Lava for Good™ Podcasts in association with Signal Co. No1.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
January fourteenth, two thousand and nine, was an unremarkable day
at a daycare center in Lincolnshire, Illinois, until the afternoon
when a daycare provider named Melissa Kallyauzinski called out to
her coworkers for help. A sixteen month old boy in
her care had become unresponsive. Nine on one was called
(00:25):
CPR was performed, but the infant never regained consciousness. After
two autopsies, a forensic pathologist reported a rear skull fracture
and massive bleeding that he believed were caused by blunt
Ford's head drama, and after a fourteen hour interrogation, Melissa
told investigators what they wanted to hear, which sent her
(00:46):
away for thirty one years. But this is wrongful conviction.
Wrongful conviction has always given voice to innocent people in prison,
and now we're expanding that voice to you. Call us
at eight three three two o seven four six sixty
(01:08):
six and tell us how these stories make you feel
and what you've done to help the cause, even if
it's something as simple as telling a friend or sharing
on social media, and you might just hear yourself in
a future episode. Call us eight three three two oh
seven four six sixty six. Welcome back to Wrongful Conviction.
(01:36):
I don't even know if I'm ready for this one,
because this case just hurts my heart. It's an incredible
story of a wonderful young woman who has been chewed
up and spit out by a system that is well
unfortunately designed to do just that. And I'm talking about
Lissa Kyle Yazinski. Melyssa, thanks for being here. I'm happy
(01:58):
you're here, but I'm sorry you're here under these circumstances.
Speaker 2 (02:01):
Thank you for having.
Speaker 1 (02:02):
Me and with Melissa today. Kathleen Zelner, as many of
you may know, one of the most accomplished criminal defense
appellent attorneys in the country. She's been responsible for dozens
of exonerations, including some you've heard about on the show
like Ryan Ferguson. Kathleen. I'm so excited that you're here.
Speaker 3 (02:23):
Thank you. It's a great opportunity.
Speaker 1 (02:26):
This case is one of the more obvious wrongful convictions
we've ever seen, and it involves a false confession, junk science,
corrupt practices, lying, compromised witnesses, and it goes downhill from there.
This is a thirty one year sentence of a young
woman who was working in I think what we could
(02:47):
all agree is a noble profession right doing daycare, and
she was almost certainly Is it fair to say, Kathleen,
she was convicted of a crime that never happened.
Speaker 3 (02:56):
Yes, this is not a murder. This is just a
complet botched forensic case.
Speaker 1 (03:04):
This case is similar to a shaken baby syndrome case,
in which a child succumbs to various complications that are
assigned both a violent cause and an assailant. The most
recent caregiver in this case, that's Melissa, who never even
got close to being in trouble before this incident, but
rather led a quiet life growing up in a loving
family and a working class suburb of Chicago.
Speaker 2 (03:26):
I grew up in Carpentersville. I mean, it's just your
typical suburban neighborhood. My parents' names are Paul and Shurrel.
Still live in the same house. I'm the youngest of five.
I have two older half brothers, my middle sister who's
a year older than me, and Crystal. Me and her
kind of did the same thing growing up. She babysat,
(03:49):
I babysat We Love Children.
Speaker 1 (03:52):
Melissa got the chance to work at this daycare center.
It was called the Minnie Sabidi in Lincolnshire, which was
a relatively Affluich Chicago suburb. Right.
Speaker 2 (04:01):
I ended up going to the Arlington Heights one for
majority of the time that I worked for many sube.
When I transferred to the one in Lincolnshire, my sister
was working there and my nephew was there. He was
just a baby. The children made my day. I didn't
even care if late I had baby pew coming. Yeah,
(04:24):
it smelled, but I mean I still loved what I did.
Speaker 1 (04:27):
How this begins is that there was a young child
there named Benjamin Kingen. What do we know about the
pre existing conditions that now have come to life?
Speaker 3 (04:38):
In October of two thousand and eight, Melissa hadn't even
started working there and there was an incident at the
daycare center. That incident was totally concealed from the parents.
It was not written up, the word was put out
by management. Nobody was to really talk about it. They
were playing a game and one of the teachers aides
(05:00):
had a plastic bat and was witnessed swinging the bat
and they were throwing this plastic ball and she accidentally
hit Ben in the back of the head. That manifested
itself in a really goose egg sized lump on his head,
But when he was taken to his pediatrician, the mother
(05:23):
didn't know the circumstances. She just thought maybe he was
a headbanger because he had some stomach problems, so he'd
throw himself back on the floor. So the mother had
no idea the severity of the blow, so when she
took him to a pediatrician, she minimized what happened, and
the pediatrician opted not to do a CT scan. But
(05:44):
that subdual heimatoma, that pre existing injury, was there all
those months and tragically resulted in his death from a
subsequent incident where he banged his head.
Speaker 1 (05:57):
Pediatricians regularly monitor the height weight in the head circumference
of infants and toddlers. Before this incident in October two
thousand and eight, both Ben and his twin sister's head
circumferences were in the fiftieth percentile. However, leading up to
the day of Ben's tragic passing, Ben's had rapidly expanded
into the ninety fifth percentile by January fourteenth, two thousand
(06:19):
and nine.
Speaker 3 (06:20):
Yeah, so January fourteenth of two thousand and nine. Ben's
mother brings him to the daycare center, but he has
been at home for two days and he's done some
projectile vomiting. He's lethargic, which is a classic sign of
a head injury head trauma. She brings him in because
(06:41):
she thinks he's feeling better. And so Melissa noticed that
he seemed a little tired, but nothing that really stood
out to her.
Speaker 2 (06:49):
I mean, it was just a normal, usual day. They
were playing most of the day, had snacked and lunch.
It was me and Nancy that day that afternoon, like
after nap, So just went to see my sister, my nephew.
Speaker 3 (07:05):
Significantly, Melissa leaves the room and it's probably gone for
twenty minutes. The teacher's aid, Nancy Kallinger, who was in
the room before Melissa came back. She said that he'd
thrown himself back very forcefully and hit his head on
the floor before Melissa came back in the room. When
she returns, Ben is in his bouncy chair, and she
(07:29):
notices that he's not responding to his name, and then
just a minute or so later, she notices kind of
an orange colored foam coming out of his nose and
his mouth yeah.
Speaker 2 (07:41):
When I went over to him, he was just in
his chair. I went to go get help immediately when
I didn't get a respond, so I picked my head out,
left the door open, of course, and my sister came running.
Speaker 3 (07:54):
Her sister comes in another aid. They render CPR. So
Melissa is only back in that room for a couple
of minutes, and even the state pathologists testified well by
the time he was unresponsive, this injury had to have
occurred thirty minutes before or all the way up to
(08:14):
three hours. He could not go from being alert and
responsive to this almost comatose condition in the amount of
time that Melissa was in the room, so then nine
to one one is called.
Speaker 1 (08:28):
Of course, we now know that a child can experience
potentially up to seventy two hours of lucidity after a
traumatic event before succumbing to the symptoms that can arise
from head trauma, for example intracranial and retinal bleeding as
well as brain swelling. And who knows what was going
on during the three days leading up to his tragic passing,
But if there was another injury in addition to the
(08:50):
one reported by Nancy Kalinger, it could have been as
innocuous as a short fall that could have caused a
rebleed of his previous head injury, and a slow, invisible
creep towards unconsciousness.
Speaker 2 (09:02):
It was just chaos. We took the kids next door
back into the infant room so the paramedics can do
what they do, and I was just following because it's
like what happened.
Speaker 3 (09:13):
He never regains consciousness. They take him in and he's
pronounced dead, and then an autopsies performed by doctor Choi.
Speaker 1 (09:22):
There were two autopsies, right, which is unusual.
Speaker 3 (09:25):
Yes, very In fact, the cases I've had where there's
actually not a murder, there's always two autopsies. So there's
the first one where the pathologist decides, well, the cause
of death doesn't clear, it's undetermined. Then there's police pressure,
and then the second one. Suddenly there's a homicide. And
that's what happened in this case.
Speaker 1 (09:47):
Choi was pressured, Yeah, it's like we didn't like the
first conclusion, go get us a different one. While doctor
Choi was instructed to do a second autopsy, detectives return
to the Mini Subie daycare to find Melissa.
Speaker 3 (10:00):
I barely got.
Speaker 2 (10:00):
Any sleep, but the next morning I went to work.
They were all there, and the way they took me out,
I had each detective basically standing side by side, super
close to me, and then I had one behind me,
and I remember Detective Hide telling me we need to
ask you some more things and we need you to
(10:22):
come with us. But I didn't feel like I had
a choice when they were surrounding me.
Speaker 1 (10:28):
Melissa was eventually taken to Lincolnshire PD, where she endured
fourteen hours of interrogation without her parents or an attorney.
But importantly, there were other factors at play that made
Melissa more vulnerable to police pressure.
Speaker 2 (10:41):
They got sexually assaulted back in two thousand and six, and.
Speaker 3 (10:44):
She had a cute post traumatic stress. Her head was
covered with a blanket, so she was like super clausterphobic
and had PTSD. That condition was so bad that it
showed up years later when I just had doctor Westfall
(11:04):
from Yale forensic psychiatrist do a workup of Melissa, and
they reported back to me that she had unresolved PTSD.
They were tracing back to the sexual assault. Well, she
had reported it and the perpetrator had some connection to
(11:25):
the police department, and there were no charges brought against him.
Speaker 1 (11:29):
In addition, subsequent IQ and verbal testing suggests that Melissa's
mental acuity also made her more susceptible to pressure from authority. Figures.
Speaker 3 (11:38):
Yeah, she's trapped in the room with these two officers
who are incredibly aggressive with her. They got her wedged
into this corner. And the thing I think that's most
striking to me in her interrogation that goes on for
hours is how many times she denies having done anything.
Speaker 1 (11:58):
Nine at least that we've counted, right, seventy nine times
she says, no, I didn't do it.
Speaker 2 (12:03):
I know I didn't do anything wrong. And it's just
so crazy because they keep pressing and pressing. They'll put
you in a little room and mal press and pressed
like the world is crushing you, and you can't get
out of it until you tell them what they want
to hear, because for people like me, there is no
right answer. They want their answer.
Speaker 1 (12:34):
You're listening to Wrongful Conviction. You can listen to this
and all the Lava for Good podcasts one week early
and ad free by subscribing to Lava for Good Plus
on Apple Podcasts.
Speaker 3 (12:50):
During Melissa's interrogation, Joy is performing the second autopsy and
so the officers keep leaving the end interrogation to go
and talk to him, and that there's other officers present
at the autopsy, which they should actually never do that
because then the pathologist feels extremely pressured.
Speaker 1 (13:12):
There were no cuts or obvious wounds or serious bruising,
but after the second autopsy, doctor Troy ruled Ben's death
a homicide. He said that there was intracranial bleeding followed
by something that appears to not have been supported by
the X rays, that Ben had a skull fracture from
blood for's ed trauma.
Speaker 3 (13:30):
There's not a fracture that showed up on the clear
X rays, and there was bleeding. Doctor Troy, he can't
see that fracture on the X ray, but he thinks
he can see it visually. The whole history of the
prior injury that caused this potential for massive bleeding existed
(13:52):
in October and was undetected, and then he misses it
at autopsy and then gets fixated on what he thought
it was a skull fracture and that there had to
be this tremendous blow to Ben's head. Well, subsequent pathologist
have said no, no, that's an accessory suture. That's not
(14:12):
a skull fracture. There wasn't any tremendous blow to his
head accessories.
Speaker 1 (14:17):
Skull sutures are developmental anomalies which typically occur while the
soft spots of a young child's skull solidified during the
first twenty four months. So while X rays are typically
a better assessment of fractures or sutures than the naked eye,
doctor Choi chose or was pressured to trust his naked
eye instead to assess the source of the intracranial bleeding.
Speaker 3 (14:40):
There was fresh blood that had come from the old injury.
It's very similar to the football player that has the concussion,
then goes back in and is playing and has a
slight head tap and suddenly he's dead. You've got an
aggravation of the underlying layers of the brain. In this case,
there was barachnoid subgalile bleeding, but it still wasn't massive bleeding,
(15:04):
and there was also old blood. So that's why doctor
Choi in the first autopsy, it wasn't clear at all
that this was a homicide.
Speaker 1 (15:14):
There was no reason that a competent person in his
position could have or should have made these mistakes or again,
maybe they weren't mistakes. Maybe he was just cow tewing
to the men in blue that were in the room
with him, which, again, that's outrageous. It's fucking outrageous that
they're allowed to like bird dog this situation. Years later,
doctor Joy admitted that he missed the previous injury during
(15:35):
the autopsy, which should observed as a compelling explanation for
the bleeding, especially in the absence of any exterior injuries.
But the result of this faulty forensic exam was then
brought into the interrogation room.
Speaker 3 (15:49):
So it's the classic read technique where you start out
she's denying, denying, denine. Then you tell her none of
that's true. You've just talked to the pathologists. He had
this horror head injury equivalent to being thrown off a
three story building. She was the one in the room
with him when he became unresponsive. It has to be her,
and they just keep pounding on her.
Speaker 2 (16:11):
They were just like, let's just cut the bs, let's
cut to it. All of us are exhausters. Why don't
you just tell us so we can all go home.
I'm just wanted to get home, tell my parents what happened.
And go from there and like, Okay, they want to
hear what they want to hear, forget what I'm saying.
So that's why I said what I said. Everything they
said I said.
Speaker 3 (16:33):
I would say eighty five percent of the interrogation is
them talking. They believe that she just snapped and threw
him down. They tell her exactly what to say. Did
they show her what to do? Like here, take this,
they gave her some little teddy bear. Throw that down
on the floor really hard. He's facing out and she
(16:55):
throws him on the floor. The problem is the injuries
in the back of the head. But once got it,
they ran with it and they're couching it in. If
you haven't done anything really wrong, you'll get to go home.
I mean, she actually leaves the interrogation and says, I've
got to get home to my puppy and I'm going
to warm the car up.
Speaker 2 (17:16):
I literally thought I was going home to see my puppy.
I had my keys with the prestarter, I had my
phone in my hand. I was literally thought I was
going home to see my family and my dog. But
it was crazy when they took everything out of my hand.
Speaker 1 (17:31):
Neither the false confession nor the atops who lined up
with reality. Yet Melissa has not seen the outside since
January fifteenth of two thousand and nine.
Speaker 2 (17:40):
After everything had happened. I do remember being in the
back of a police card and saying I'm innocent. I
did not do this, and I kept calling them and
I kept telling them there is a big mistake, and
they were not listening to me. At hall, I felt
like this tiny little mouth because it's like I'm telling everybody,
(18:02):
like there's a big mistake. I did not do this,
And it was like a nightmare. There is a big mistake.
Speaker 1 (18:10):
She immediately we can't at her story, but it doesn't matter.
You can't put that genie back in the bottle. So
was she able to bond out or was she stuck
in jail awaiting a trial that was two years away.
Speaker 3 (18:21):
She never bonded out. She was stuck in jail and
the parents had come to me to do the trial.
But I was in the middle of Kevin Fox's appeal
from his civil rights verdict, and so I recommended a
very accomplished criminal defense attorney. Paul de Luca, who had
been a prosecutor in Cook County, has been a defense
(18:43):
attorney for years, has done dozens of death penalty cases
and all of that. And then he brought in another
attorney who was equally experienced, and they became the trial attorneys.
So Paul de Luca tried to get the confession tossed out,
and he brought in Richard Leo, and they did my
Q testing, verbal testing, and they did all the right things,
(19:06):
and the judge would not let any of that evidence in.
Remember this was in twenty eleven. He said that at
that point the case law was not strong enough to
justify letting in a false confession expert. So all that
workup was done her IQ. The problem with the verbal testing.
The one thing though that they knew about but they
(19:28):
didn't pursue. And Paul's a totally honest person. He's given
me an affidavit to this effect, was the sexual assault
and unresolved PTSD. Well, Paul de Luca knew that, but
you know, he was focused on Richard Leo and trying
to get all of that in. But they should have
done that. They simply did not know that that, combined
(19:50):
with her language impairments, was just fatal to her that day,
being in that room, in that corner with these people.
Speaker 1 (20:00):
So, despite the science of false confessions as well as
how susceptible Melissa was to police pressure, her false statement
was admitted and the defense rebuttal evidence and the expert himself,
Richard Leo, were denied. Additionally, before her November twenty eleven trial,
Melissa's defense was provided with a digital image of Ben's
(20:21):
skull X ray. But you know how a file could
be saved in a different format which can affect the
quality of the content. Well, this image was so compressed
that it simply wasn't legible, leaving the defense experts at
a big disadvantage. Doctor Shaku Tease testified about both the
unreadable images as well as doctor Troy's shoddy work.
Speaker 3 (20:42):
Doctor Troy didn't take samples of the skull fracture, They
didn't do the slides that he should have done, So
doctor Tease, she was saying there was no definite proof
of the fracture and the X rays were totally unreadable,
and she thought it could have been a suture. Ben
was only sixteen months old, so his skull was still
(21:04):
in that formative you know, where you have the little
soft spot and the skull is more vulnerable, and so anyway,
te said this could be an accessory suture that's part
of the final skull formation, and that Troy had just
mistaken it for a fracture. Then Paul de Luca brought
in doctor Leedsma, who's a renowned pediatric physician in Chicago,
(21:26):
and he tried to convince the jury this was a
rebleed of the prior injury.
Speaker 1 (21:31):
The defense also called the other teacher's aide, Nancy Kalinger.
Speaker 3 (21:35):
She claimed that she'd taken him to the changing table
and he didn't need his diaper change, and that she
set him down on the floor and she claimed that
he Melissa's not in the room, that he threw himself
back really forcefully.
Speaker 1 (21:50):
Which directly supports the rebleed theory. Then the state presented
an alleged forensic pathologist named Manny Montez, who said that
he had felt the fracture with his own hands, which,
according to the recently resurfaced raw digital images of Ben's skull,
appears to have been a total fabrication.
Speaker 3 (22:09):
Totalized Yes, So what happened was the state sprung doctor
Montes on the defense in rebuttal and it was very
unfortunate they didn't have a counter to Montes, but he
gave this Academy Award performance and his credentials. He was
never board certified. But he's the guy that comes in
(22:31):
and he's felt the skull and he's manipulated it and
tells the jury, oh my god, there's this through and
through fracture. That was a tremendous blow. So that's the
last thing the jury hears.
Speaker 1 (22:42):
Prosecutors mentioned the skull fracture more than thirty times, so
they knew they had something that couldn't be beat. Right.
They probably had a meeting in the back room somewhere
and said, hey, just keep go after skull practice, skull fractors.
Keep hitting that point right, and you could probably they
could probably see the reaction in real time that the
jurors just probably wanted to throw up thinking about this
terribly violent act. So at the end of the day,
(23:04):
you've got lay people on the jury. There's competing medical experts.
It's almost like a toss up, and if it's a
toss up, they're going to default to. Well, it's easier
to reconcile the idea that something horrible was done by
a bad person as opposed to the idea that a
baby could have just died, because if that's true, then
your baby could just die.
Speaker 3 (23:25):
I've done a lot of medical malpractice with parents who've
lost a child. I think when parents lose a child,
they tend to blame themselves. I think the mother who
may well have had a malpractice suit against the pediatrician
who didn't do the CT scan, in her mind, probably
blamed herself to some extent, although it was the pediatrician's fault.
(23:49):
So as you're saying, one thing that alleviates some of
that guilt is to have a clear bad guy, a
person you can blame this on, like this didn't have
anything to do with October. This had to do with
this young woman and her vile temper.
Speaker 2 (24:07):
It was just heartbreaking with me, and then how these
people lied to them to make it look like something
when it isn't. You're qu in innocent personal ways. Thirty
one years my heart literally went up to my mouth
(24:40):
when I went to Duwai. It was scary a little bit,
and it was weird. I was with hermids with people
I did not know. But then eventually the women that
I met they made it easier and we kind of
stuck together and they kind of stuck up for me
to it wasn't as bad as what I thought it
(25:03):
was because I know that I'm not a troublemaker and
I don't cause albums. So by me staying quiet and
kind of saying to myself, which I did in the county,
I did here as well. So I was cautious that
everything I was doing it made things easier. And I
(25:24):
just remember Paul telling me that this is not over,
like You're not going to do thirty one years. It's
just a number. Don't stress out about this. And then
when they told me that Kathleen, when I got Kathleen
zelln there, I just kind of knew like I just
had to kind of suck it up my emotions and
(25:46):
set aside to be strong.
Speaker 3 (25:48):
So our first involvement is in doing the direct appeal,
and we go to the second District, which is very conservative,
but we've got no rebuttal to the confession, and because
all of the evidence has been blocked by the trial judge,
and Illinois is still contemplating whether false confession expert should
(26:08):
be allowed to testify, and the first time that Illinois
allows that is in federal court. The Seventh Circuit in
the northern district, so the state courts are lagging behind.
So the court just pretty much does a knee jerk
sort of opinion. Know the proofs there beyond a reasonable doubt,
and I think we'd already started really reinvestigating, finding out
(26:32):
the history of the injury, talking to doctor Nancy Jones,
who was a renowned pathologist. She's now deceased, almost always
for the state, and she's the one who thought it
was an access researcher. We got doctor Choi to recant
his testimony. Doctor Chroi retired. I'm not even sure if
he's still alive, but I had other cases with him,
(26:55):
things where he just made mistakes. We approached him and said,
my god, there's an underlying injury here that you missed
on autopsy. So he agreed, yeah, there was Gavin affidavit,
but he was always pressured by the state. They went
back and had him modify and say, well, I missed
it but it wasn't important. He just capitulated when pressure
(27:19):
was put on him. But anyway, Doctor Rudd then stepped
in discovered the tiff image. So when Paul de Luca
was representing Melissa, he was given these unreadable JPEG images
of the skull. It was practically like a black outline
of the head. There's no possible way you could have
(27:40):
detected whether there was a fracture there. That's why the
state then brought in and sandbagged him with doctor Montez.
That was very thought out. So doctor Rudd discovered that
on the corner's computer, other than the JPEG images, there
were these completely clear Tiff images, and the Tiff images
(28:02):
showed this beautiful picture of Ben's skull and there was
no fracture. Then we got a forensic computer expert, we
got the metadata and you could see that someone had
manipulated the images of the skull.
Speaker 1 (28:17):
The Tiff images are the uncompressed raw digital images of
Ben's skull, which were vital to exposing doctor Joy's faulty opinion,
but were not made available to the defensive trial. Since then,
a forensic computer expert has proven that someone had to
have exported the crystal clear Tiff images as JPEGs, opened
them in a new program, and saved them at an
(28:38):
even lower bit rate, rendering them useless to another pathologist
who with them could have shown that there was no
through and through fracture, but rather that there were accessory
sutures as well as a rebleed of a previous injury.
Speaker 3 (28:55):
They knew they'd pressured the pathologists. I mean, it was
so extreme. When doctor Rudd came along years later, doctor
Troy changed the death certificate to say it wasn't a homicide.
So the death certificate now does not say it was
a homicide. It says it was undetermined.
Speaker 1 (29:12):
That's unfucking realize she's in prison for something that was
not a homicide.
Speaker 3 (29:16):
So with all of that, we came back to Lake
County to the trial judge. The judge did everything to
try to ignore the new images that we discovered. He
accused our computer expert of manipulating the data. Nancy Jones
became critically ill with cancer. She died about a month
(29:39):
after there, and she was too ill to come in
and testify. So we brought in doctor Zimmermann, and he
was head of the National Trauma Abuse Council in the
United States, probably the leading expert in the country radiologist
in detecting skull fractures that were the result of an
(30:00):
intentional act. He testified there wasn't a skull fracture. There
would never be a skull fracture. The tiff images were
clear there was no skull fracture, and that the confession
of the thing with the little Teddy Bear being thrown
down on his face did not match. The physical evidence
(30:22):
did not match.
Speaker 2 (30:23):
Well.
Speaker 3 (30:23):
The judge just thought he had better understanding of the
medicine and the radiology than doctor Zimmermann, so he just
wasn't going to consider his testimony. So back we go
to the appellate court. Now the judge couldn't get around
the fact that Melissa had confessed, and then she thought
it was a battle of the experts. They affirmed it.
(30:43):
So then we come back again. New state's attorney takes over.
He indicates he wants to meet with us, that they
have serious questions about Melissa's conviction based on the computer
evidence we presented. I hire Saul Casson, who looks at
the confession.
Speaker 1 (31:02):
Of course, Saulcassen is one of the foremost experts in
the world on false confessions.
Speaker 3 (31:07):
Sawcassen had tracked the case for years, so he thought
it was appalling. And then I hired the forensic psychiatrist
from Yale and we just started over. So the state
recommended a computer forensic company and said they would be
very comfortable with their findings. I had all the computer
(31:28):
analysis redone. They concluded my expert was spot on that
the images had been manipulated, and they went even further
and said they had been intentionally manipulated, that my expert
in no way had altered any data, and they completely
supported him. The experts from Yale have determined that the
(31:53):
sexual assault should have been a major part of the trial.
They've given me all of that information. And then of
course I have Nancy Jones, Affid David, and I have
an additional pathologist who's looked at said this was not
a murder. This was not a murder. This was a
child who had a severe head injury in October. That's
why his head circumference increased so dramatically. This was not
(32:17):
a murder. So in looking at it, we don't feel
we'll get relief from the trial judge. It's the same
trial judge. We have an action pending in federal court,
but it's backlogged horribly. So we're going to go to
Governor Pritzker with a clemency petition. I think that's our
best avenue at this point.
Speaker 1 (32:35):
The good news is you have one of the best governors,
and I believe that he will give this the attention
it deserves. There's only one conclusion you can draw. I mean,
this entire case has collapsed like a house of cards.
There's nothing there. It's insane. So is there a call
to action?
Speaker 3 (32:52):
I would encourage everyone to read our petition. I will
post it on our website Kathleen t Zelner dot com.
They'll be untached information in there for Governor Pritzker. If
people feel persuaded by it and feel there's been a
miscarriage of justice, I would strongly encourage them to write
directly to him. I think it would be enormously helpful.
Speaker 1 (33:14):
Great, we'll put links in the episode description, and then
with that we're going to turn to closing arguments, my
favorite part of every episode, which is where I have
the honor to thank each of you for joining us
here on the show. And then I'm going to kick
back in my chair, turn my microphone off, leave my
headphones on, close my eyes, and just listen to anything
(33:36):
else you want to share with me and our wonderful audience.
Speaker 3 (33:40):
So I would say to the audience that the way
I imagine and think about this case is I feel
as if I'm fighting for my daughter's life. He's about
the same age as Melissa. I believe in the history
of the cases I've had, I've had twenty three wrongful
convictions resolved. This is probably the worst one. And it's
(34:03):
hard to measure things, but I think it's because Melissa
is probably one of the best people I've ever met
in my life. She is a purely good person, and
I think anyone that looks at this case should be
outraged by the manipulation of the evidence to convict this
poor young girl of the murder of a child, and
(34:25):
the damage that's been done to her mentally. Having to
cope with this is indescribable. And so it doesn't matter
what I have to do. It does not matter how
long this battle takes. We are not going to stop
this battle. We are going to keep pounding on the
doors of justice till someone opens them.
Speaker 2 (34:47):
If people are out there then know of my case.
There's still time to do support letters on my vhas
and basically just pray for me and my family and
the other family as well. With the supporters that I
hear from. It gives me strength and it helps me
to stay strong. So just hearing from people through my
(35:09):
family and then telling me and others is just very helpful.
The support is just very uplisting for me. I just
hope and pray that everything goes well. And I thank
everybody sold so much from the Boutmary Heart of hearing
this and hearing my story and seeing that I am
(35:29):
innocent and they wrongfully convict me, and I just I'm
just grateful for people that reach out. Thank you very much.
Speaker 1 (35:43):
Thank you for listening to Wrongful Conviction. You can listen
to this and all the Lava for Good podcasts one
week early by subscribing to Lava for Good Plus on
Apple Podcasts. I want to thank our production team, Connor
Hall and Kathleen Fink, as well as my fellow executive
producers Jeff Kempler, Kevin Wartis, and Jeff Clyburn. The music
in this production was supplied by three time OSCAR nominated
(36:04):
composer Jay Ralph. Be sure to follow us across all
social media platforms at Lava for Good and at Wrongful Conviction.
You can also follow me on Instagram at It's Jason Flahm.
Wrongful Conviction is the production of Lava for Good Podcasts
in association with signal Company number one
January fourteenth, two thousand and nine, was an unremarkable day
at a daycare center in Lincolnshire, Illinois, until the afternoon
when a daycare provider named Melissa Kallyauzinski called out to
her coworkers for help. A sixteen month old boy in
her care had become unresponsive. Nine on one was called
(00:25):
CPR was performed, but the infant never regained consciousness. After
two autopsies, a forensic pathologist reported a rear skull fracture
and massive bleeding that he believed were caused by blunt
Ford's head drama, and after a fourteen hour interrogation, Melissa
told investigators what they wanted to hear, which sent her
(00:46):
away for thirty one years. But this is wrongful conviction.
Wrongful conviction has always given voice to innocent people in prison,
and now we're expanding that voice to you. Call us
at eight three three two o seven four six sixty
(01:08):
six and tell us how these stories make you feel
and what you've done to help the cause, even if
it's something as simple as telling a friend or sharing
on social media, and you might just hear yourself in
a future episode. Call us eight three three two oh
seven four six sixty six. Welcome back to Wrongful Conviction.
(01:36):
I don't even know if I'm ready for this one,
because this case just hurts my heart. It's an incredible
story of a wonderful young woman who has been chewed
up and spit out by a system that is well
unfortunately designed to do just that. And I'm talking about
Lissa Kyle Yazinski. Melyssa, thanks for being here. I'm happy
(01:58):
you're here, but I'm sorry you're here under these circumstances.
Speaker 2 (02:01):
Thank you for having.
Speaker 1 (02:02):
Me and with Melissa today. Kathleen Zelner, as many of
you may know, one of the most accomplished criminal defense
appellent attorneys in the country. She's been responsible for dozens
of exonerations, including some you've heard about on the show
like Ryan Ferguson. Kathleen. I'm so excited that you're here.
Speaker 3 (02:23):
Thank you. It's a great opportunity.
Speaker 1 (02:26):
This case is one of the more obvious wrongful convictions
we've ever seen, and it involves a false confession, junk science,
corrupt practices, lying, compromised witnesses, and it goes downhill from there.
This is a thirty one year sentence of a young
woman who was working in I think what we could
(02:47):
all agree is a noble profession right doing daycare, and
she was almost certainly Is it fair to say, Kathleen,
she was convicted of a crime that never happened.
Speaker 3 (02:56):
Yes, this is not a murder. This is just a
complet botched forensic case.
Speaker 1 (03:04):
This case is similar to a shaken baby syndrome case,
in which a child succumbs to various complications that are
assigned both a violent cause and an assailant. The most
recent caregiver in this case, that's Melissa, who never even
got close to being in trouble before this incident, but
rather led a quiet life growing up in a loving
family and a working class suburb of Chicago.
Speaker 2 (03:26):
I grew up in Carpentersville. I mean, it's just your
typical suburban neighborhood. My parents' names are Paul and Shurrel.
Still live in the same house. I'm the youngest of five.
I have two older half brothers, my middle sister who's
a year older than me, and Crystal. Me and her
kind of did the same thing growing up. She babysat,
(03:49):
I babysat We Love Children.
Speaker 1 (03:52):
Melissa got the chance to work at this daycare center.
It was called the Minnie Sabidi in Lincolnshire, which was
a relatively Affluich Chicago suburb. Right.
Speaker 2 (04:01):
I ended up going to the Arlington Heights one for
majority of the time that I worked for many sube.
When I transferred to the one in Lincolnshire, my sister
was working there and my nephew was there. He was
just a baby. The children made my day. I didn't
even care if late I had baby pew coming. Yeah,
(04:24):
it smelled, but I mean I still loved what I did.
Speaker 1 (04:27):
How this begins is that there was a young child
there named Benjamin Kingen. What do we know about the
pre existing conditions that now have come to life?
Speaker 3 (04:38):
In October of two thousand and eight, Melissa hadn't even
started working there and there was an incident at the
daycare center. That incident was totally concealed from the parents.
It was not written up, the word was put out
by management. Nobody was to really talk about it. They
were playing a game and one of the teachers aides
(05:00):
had a plastic bat and was witnessed swinging the bat
and they were throwing this plastic ball and she accidentally
hit Ben in the back of the head. That manifested
itself in a really goose egg sized lump on his head,
But when he was taken to his pediatrician, the mother
(05:23):
didn't know the circumstances. She just thought maybe he was
a headbanger because he had some stomach problems, so he'd
throw himself back on the floor. So the mother had
no idea the severity of the blow, so when she
took him to a pediatrician, she minimized what happened, and
the pediatrician opted not to do a CT scan. But
(05:44):
that subdual heimatoma, that pre existing injury, was there all
those months and tragically resulted in his death from a
subsequent incident where he banged his head.
Speaker 1 (05:57):
Pediatricians regularly monitor the height weight in the head circumference
of infants and toddlers. Before this incident in October two
thousand and eight, both Ben and his twin sister's head
circumferences were in the fiftieth percentile. However, leading up to
the day of Ben's tragic passing, Ben's had rapidly expanded
into the ninety fifth percentile by January fourteenth, two thousand
(06:19):
and nine.
Speaker 3 (06:20):
Yeah, so January fourteenth of two thousand and nine. Ben's
mother brings him to the daycare center, but he has
been at home for two days and he's done some
projectile vomiting. He's lethargic, which is a classic sign of
a head injury head trauma. She brings him in because
(06:41):
she thinks he's feeling better. And so Melissa noticed that
he seemed a little tired, but nothing that really stood
out to her.
Speaker 2 (06:49):
I mean, it was just a normal, usual day. They
were playing most of the day, had snacked and lunch.
It was me and Nancy that day that afternoon, like
after nap, So just went to see my sister, my nephew.
Speaker 3 (07:05):
Significantly, Melissa leaves the room and it's probably gone for
twenty minutes. The teacher's aid, Nancy Kallinger, who was in
the room before Melissa came back. She said that he'd
thrown himself back very forcefully and hit his head on
the floor before Melissa came back in the room. When
she returns, Ben is in his bouncy chair, and she
(07:29):
notices that he's not responding to his name, and then
just a minute or so later, she notices kind of
an orange colored foam coming out of his nose and
his mouth yeah.
Speaker 2 (07:41):
When I went over to him, he was just in
his chair. I went to go get help immediately when
I didn't get a respond, so I picked my head out,
left the door open, of course, and my sister came running.
Speaker 3 (07:54):
Her sister comes in another aid. They render CPR. So
Melissa is only back in that room for a couple
of minutes, and even the state pathologists testified well by
the time he was unresponsive, this injury had to have
occurred thirty minutes before or all the way up to
(08:14):
three hours. He could not go from being alert and
responsive to this almost comatose condition in the amount of
time that Melissa was in the room, so then nine
to one one is called.
Speaker 1 (08:28):
Of course, we now know that a child can experience
potentially up to seventy two hours of lucidity after a
traumatic event before succumbing to the symptoms that can arise
from head trauma, for example intracranial and retinal bleeding as
well as brain swelling. And who knows what was going
on during the three days leading up to his tragic passing,
But if there was another injury in addition to the
(08:50):
one reported by Nancy Kalinger, it could have been as
innocuous as a short fall that could have caused a
rebleed of his previous head injury, and a slow, invisible
creep towards unconsciousness.
Speaker 2 (09:02):
It was just chaos. We took the kids next door
back into the infant room so the paramedics can do
what they do, and I was just following because it's
like what happened.
Speaker 3 (09:13):
He never regains consciousness. They take him in and he's
pronounced dead, and then an autopsies performed by doctor Choi.
Speaker 1 (09:22):
There were two autopsies, right, which is unusual.
Speaker 3 (09:25):
Yes, very In fact, the cases I've had where there's
actually not a murder, there's always two autopsies. So there's
the first one where the pathologist decides, well, the cause
of death doesn't clear, it's undetermined. Then there's police pressure,
and then the second one. Suddenly there's a homicide. And
that's what happened in this case.
Speaker 1 (09:47):
Choi was pressured, Yeah, it's like we didn't like the
first conclusion, go get us a different one. While doctor
Choi was instructed to do a second autopsy, detectives return
to the Mini Subie daycare to find Melissa.
Speaker 3 (10:00):
I barely got.
Speaker 2 (10:00):
Any sleep, but the next morning I went to work.
They were all there, and the way they took me out,
I had each detective basically standing side by side, super
close to me, and then I had one behind me,
and I remember Detective Hide telling me we need to
ask you some more things and we need you to
(10:22):
come with us. But I didn't feel like I had
a choice when they were surrounding me.
Speaker 1 (10:28):
Melissa was eventually taken to Lincolnshire PD, where she endured
fourteen hours of interrogation without her parents or an attorney.
But importantly, there were other factors at play that made
Melissa more vulnerable to police pressure.
Speaker 2 (10:41):
They got sexually assaulted back in two thousand and six, and.
Speaker 3 (10:44):
She had a cute post traumatic stress. Her head was
covered with a blanket, so she was like super clausterphobic
and had PTSD. That condition was so bad that it
showed up years later when I just had doctor Westfall
(11:04):
from Yale forensic psychiatrist do a workup of Melissa, and
they reported back to me that she had unresolved PTSD.
They were tracing back to the sexual assault. Well, she
had reported it and the perpetrator had some connection to
(11:25):
the police department, and there were no charges brought against him.
Speaker 1 (11:29):
In addition, subsequent IQ and verbal testing suggests that Melissa's
mental acuity also made her more susceptible to pressure from authority. Figures.
Speaker 3 (11:38):
Yeah, she's trapped in the room with these two officers
who are incredibly aggressive with her. They got her wedged
into this corner. And the thing I think that's most
striking to me in her interrogation that goes on for
hours is how many times she denies having done anything.
Speaker 1 (11:58):
Nine at least that we've counted, right, seventy nine times
she says, no, I didn't do it.
Speaker 2 (12:03):
I know I didn't do anything wrong. And it's just
so crazy because they keep pressing and pressing. They'll put
you in a little room and mal press and pressed
like the world is crushing you, and you can't get
out of it until you tell them what they want
to hear, because for people like me, there is no
right answer. They want their answer.
Speaker 1 (12:34):
You're listening to Wrongful Conviction. You can listen to this
and all the Lava for Good podcasts one week early
and ad free by subscribing to Lava for Good Plus
on Apple Podcasts.
Speaker 3 (12:50):
During Melissa's interrogation, Joy is performing the second autopsy and
so the officers keep leaving the end interrogation to go
and talk to him, and that there's other officers present
at the autopsy, which they should actually never do that
because then the pathologist feels extremely pressured.
Speaker 1 (13:12):
There were no cuts or obvious wounds or serious bruising,
but after the second autopsy, doctor Troy ruled Ben's death
a homicide. He said that there was intracranial bleeding followed
by something that appears to not have been supported by
the X rays, that Ben had a skull fracture from
blood for's ed trauma.
Speaker 3 (13:30):
There's not a fracture that showed up on the clear
X rays, and there was bleeding. Doctor Troy, he can't
see that fracture on the X ray, but he thinks
he can see it visually. The whole history of the
prior injury that caused this potential for massive bleeding existed
(13:52):
in October and was undetected, and then he misses it
at autopsy and then gets fixated on what he thought
it was a skull fracture and that there had to
be this tremendous blow to Ben's head. Well, subsequent pathologist
have said no, no, that's an accessory suture. That's not
(14:12):
a skull fracture. There wasn't any tremendous blow to his
head accessories.
Speaker 1 (14:17):
Skull sutures are developmental anomalies which typically occur while the
soft spots of a young child's skull solidified during the
first twenty four months. So while X rays are typically
a better assessment of fractures or sutures than the naked eye,
doctor Choi chose or was pressured to trust his naked
eye instead to assess the source of the intracranial bleeding.
Speaker 3 (14:40):
There was fresh blood that had come from the old injury.
It's very similar to the football player that has the concussion,
then goes back in and is playing and has a
slight head tap and suddenly he's dead. You've got an
aggravation of the underlying layers of the brain. In this case,
there was barachnoid subgalile bleeding, but it still wasn't massive bleeding,
(15:04):
and there was also old blood. So that's why doctor
Choi in the first autopsy, it wasn't clear at all
that this was a homicide.
Speaker 1 (15:14):
There was no reason that a competent person in his
position could have or should have made these mistakes or again,
maybe they weren't mistakes. Maybe he was just cow tewing
to the men in blue that were in the room
with him, which, again, that's outrageous. It's fucking outrageous that
they're allowed to like bird dog this situation. Years later,
doctor Joy admitted that he missed the previous injury during
(15:35):
the autopsy, which should observed as a compelling explanation for
the bleeding, especially in the absence of any exterior injuries.
But the result of this faulty forensic exam was then
brought into the interrogation room.
Speaker 3 (15:49):
So it's the classic read technique where you start out
she's denying, denying, denine. Then you tell her none of
that's true. You've just talked to the pathologists. He had
this horror head injury equivalent to being thrown off a
three story building. She was the one in the room
with him when he became unresponsive. It has to be her,
and they just keep pounding on her.
Speaker 2 (16:11):
They were just like, let's just cut the bs, let's
cut to it. All of us are exhausters. Why don't
you just tell us so we can all go home.
I'm just wanted to get home, tell my parents what happened.
And go from there and like, Okay, they want to
hear what they want to hear, forget what I'm saying.
So that's why I said what I said. Everything they
said I said.
Speaker 3 (16:33):
I would say eighty five percent of the interrogation is
them talking. They believe that she just snapped and threw
him down. They tell her exactly what to say. Did
they show her what to do? Like here, take this,
they gave her some little teddy bear. Throw that down
on the floor really hard. He's facing out and she
(16:55):
throws him on the floor. The problem is the injuries
in the back of the head. But once got it,
they ran with it and they're couching it in. If
you haven't done anything really wrong, you'll get to go home.
I mean, she actually leaves the interrogation and says, I've
got to get home to my puppy and I'm going
to warm the car up.
Speaker 2 (17:16):
I literally thought I was going home to see my puppy.
I had my keys with the prestarter, I had my
phone in my hand. I was literally thought I was
going home to see my family and my dog. But
it was crazy when they took everything out of my hand.
Speaker 1 (17:31):
Neither the false confession nor the atops who lined up
with reality. Yet Melissa has not seen the outside since
January fifteenth of two thousand and nine.
Speaker 2 (17:40):
After everything had happened. I do remember being in the
back of a police card and saying I'm innocent. I
did not do this, and I kept calling them and
I kept telling them there is a big mistake, and
they were not listening to me. At hall, I felt
like this tiny little mouth because it's like I'm telling everybody,
(18:02):
like there's a big mistake. I did not do this,
And it was like a nightmare. There is a big mistake.
Speaker 1 (18:10):
She immediately we can't at her story, but it doesn't matter.
You can't put that genie back in the bottle. So
was she able to bond out or was she stuck
in jail awaiting a trial that was two years away.
Speaker 3 (18:21):
She never bonded out. She was stuck in jail and
the parents had come to me to do the trial.
But I was in the middle of Kevin Fox's appeal
from his civil rights verdict, and so I recommended a
very accomplished criminal defense attorney. Paul de Luca, who had
been a prosecutor in Cook County, has been a defense
(18:43):
attorney for years, has done dozens of death penalty cases
and all of that. And then he brought in another
attorney who was equally experienced, and they became the trial attorneys.
So Paul de Luca tried to get the confession tossed out,
and he brought in Richard Leo, and they did my
Q testing, verbal testing, and they did all the right things,
(19:06):
and the judge would not let any of that evidence in.
Remember this was in twenty eleven. He said that at
that point the case law was not strong enough to
justify letting in a false confession expert. So all that
workup was done her IQ. The problem with the verbal testing.
The one thing though that they knew about but they
(19:28):
didn't pursue. And Paul's a totally honest person. He's given
me an affidavit to this effect, was the sexual assault
and unresolved PTSD. Well, Paul de Luca knew that, but
you know, he was focused on Richard Leo and trying
to get all of that in. But they should have
done that. They simply did not know that that, combined
(19:50):
with her language impairments, was just fatal to her that day,
being in that room, in that corner with these people.
Speaker 1 (20:00):
So, despite the science of false confessions as well as
how susceptible Melissa was to police pressure, her false statement
was admitted and the defense rebuttal evidence and the expert himself,
Richard Leo, were denied. Additionally, before her November twenty eleven trial,
Melissa's defense was provided with a digital image of Ben's
(20:21):
skull X ray. But you know how a file could
be saved in a different format which can affect the
quality of the content. Well, this image was so compressed
that it simply wasn't legible, leaving the defense experts at
a big disadvantage. Doctor Shaku Tease testified about both the
unreadable images as well as doctor Troy's shoddy work.
Speaker 3 (20:42):
Doctor Troy didn't take samples of the skull fracture, They
didn't do the slides that he should have done, So
doctor Tease, she was saying there was no definite proof
of the fracture and the X rays were totally unreadable,
and she thought it could have been a suture. Ben
was only sixteen months old, so his skull was still
(21:04):
in that formative you know, where you have the little
soft spot and the skull is more vulnerable, and so anyway,
te said this could be an accessory suture that's part
of the final skull formation, and that Troy had just
mistaken it for a fracture. Then Paul de Luca brought
in doctor Leedsma, who's a renowned pediatric physician in Chicago,
(21:26):
and he tried to convince the jury this was a
rebleed of the prior injury.
Speaker 1 (21:31):
The defense also called the other teacher's aide, Nancy Kalinger.
Speaker 3 (21:35):
She claimed that she'd taken him to the changing table
and he didn't need his diaper change, and that she
set him down on the floor and she claimed that
he Melissa's not in the room, that he threw himself
back really forcefully.
Speaker 1 (21:50):
Which directly supports the rebleed theory. Then the state presented
an alleged forensic pathologist named Manny Montez, who said that
he had felt the fracture with his own hands, which,
according to the recently resurfaced raw digital images of Ben's skull,
appears to have been a total fabrication.
Speaker 3 (22:09):
Totalized Yes, So what happened was the state sprung doctor
Montes on the defense in rebuttal and it was very
unfortunate they didn't have a counter to Montes, but he
gave this Academy Award performance and his credentials. He was
never board certified. But he's the guy that comes in
(22:31):
and he's felt the skull and he's manipulated it and
tells the jury, oh my god, there's this through and
through fracture. That was a tremendous blow. So that's the
last thing the jury hears.
Speaker 1 (22:42):
Prosecutors mentioned the skull fracture more than thirty times, so
they knew they had something that couldn't be beat. Right.
They probably had a meeting in the back room somewhere
and said, hey, just keep go after skull practice, skull fractors.
Keep hitting that point right, and you could probably they
could probably see the reaction in real time that the
jurors just probably wanted to throw up thinking about this
terribly violent act. So at the end of the day,
(23:04):
you've got lay people on the jury. There's competing medical experts.
It's almost like a toss up, and if it's a
toss up, they're going to default to. Well, it's easier
to reconcile the idea that something horrible was done by
a bad person as opposed to the idea that a
baby could have just died, because if that's true, then
your baby could just die.
Speaker 3 (23:25):
I've done a lot of medical malpractice with parents who've
lost a child. I think when parents lose a child,
they tend to blame themselves. I think the mother who
may well have had a malpractice suit against the pediatrician
who didn't do the CT scan, in her mind, probably
blamed herself to some extent, although it was the pediatrician's fault.
(23:49):
So as you're saying, one thing that alleviates some of
that guilt is to have a clear bad guy, a
person you can blame this on, like this didn't have
anything to do with October. This had to do with
this young woman and her vile temper.
Speaker 2 (24:07):
It was just heartbreaking with me, and then how these
people lied to them to make it look like something
when it isn't. You're qu in innocent personal ways. Thirty
one years my heart literally went up to my mouth
(24:40):
when I went to Duwai. It was scary a little bit,
and it was weird. I was with hermids with people
I did not know. But then eventually the women that
I met they made it easier and we kind of
stuck together and they kind of stuck up for me
to it wasn't as bad as what I thought it
(25:03):
was because I know that I'm not a troublemaker and
I don't cause albums. So by me staying quiet and
kind of saying to myself, which I did in the county,
I did here as well. So I was cautious that
everything I was doing it made things easier. And I
(25:24):
just remember Paul telling me that this is not over,
like You're not going to do thirty one years. It's
just a number. Don't stress out about this. And then
when they told me that Kathleen, when I got Kathleen
zelln there, I just kind of knew like I just
had to kind of suck it up my emotions and
(25:46):
set aside to be strong.
Speaker 3 (25:48):
So our first involvement is in doing the direct appeal,
and we go to the second District, which is very conservative,
but we've got no rebuttal to the confession, and because
all of the evidence has been blocked by the trial judge,
and Illinois is still contemplating whether false confession expert should
(26:08):
be allowed to testify, and the first time that Illinois
allows that is in federal court. The Seventh Circuit in
the northern district, so the state courts are lagging behind.
So the court just pretty much does a knee jerk
sort of opinion. Know the proofs there beyond a reasonable doubt,
and I think we'd already started really reinvestigating, finding out
(26:32):
the history of the injury, talking to doctor Nancy Jones,
who was a renowned pathologist. She's now deceased, almost always
for the state, and she's the one who thought it
was an access researcher. We got doctor Choi to recant
his testimony. Doctor Chroi retired. I'm not even sure if
he's still alive, but I had other cases with him,
(26:55):
things where he just made mistakes. We approached him and said,
my god, there's an underlying injury here that you missed
on autopsy. So he agreed, yeah, there was Gavin affidavit,
but he was always pressured by the state. They went
back and had him modify and say, well, I missed
it but it wasn't important. He just capitulated when pressure
(27:19):
was put on him. But anyway, Doctor Rudd then stepped
in discovered the tiff image. So when Paul de Luca
was representing Melissa, he was given these unreadable JPEG images
of the skull. It was practically like a black outline
of the head. There's no possible way you could have
(27:40):
detected whether there was a fracture there. That's why the
state then brought in and sandbagged him with doctor Montez.
That was very thought out. So doctor Rudd discovered that
on the corner's computer, other than the JPEG images, there
were these completely clear Tiff images, and the Tiff images
(28:02):
showed this beautiful picture of Ben's skull and there was
no fracture. Then we got a forensic computer expert, we
got the metadata and you could see that someone had
manipulated the images of the skull.
Speaker 1 (28:17):
The Tiff images are the uncompressed raw digital images of
Ben's skull, which were vital to exposing doctor Joy's faulty opinion,
but were not made available to the defensive trial. Since then,
a forensic computer expert has proven that someone had to
have exported the crystal clear Tiff images as JPEGs, opened
them in a new program, and saved them at an
(28:38):
even lower bit rate, rendering them useless to another pathologist
who with them could have shown that there was no
through and through fracture, but rather that there were accessory
sutures as well as a rebleed of a previous injury.
Speaker 3 (28:55):
They knew they'd pressured the pathologists. I mean, it was
so extreme. When doctor Rudd came along years later, doctor
Troy changed the death certificate to say it wasn't a homicide.
So the death certificate now does not say it was
a homicide. It says it was undetermined.
Speaker 1 (29:12):
That's unfucking realize she's in prison for something that was
not a homicide.
Speaker 3 (29:16):
So with all of that, we came back to Lake
County to the trial judge. The judge did everything to
try to ignore the new images that we discovered. He
accused our computer expert of manipulating the data. Nancy Jones
became critically ill with cancer. She died about a month
(29:39):
after there, and she was too ill to come in
and testify. So we brought in doctor Zimmermann, and he
was head of the National Trauma Abuse Council in the
United States, probably the leading expert in the country radiologist
in detecting skull fractures that were the result of an
(30:00):
intentional act. He testified there wasn't a skull fracture. There
would never be a skull fracture. The tiff images were
clear there was no skull fracture, and that the confession
of the thing with the little Teddy Bear being thrown
down on his face did not match. The physical evidence
(30:22):
did not match.
Speaker 2 (30:23):
Well.
Speaker 3 (30:23):
The judge just thought he had better understanding of the
medicine and the radiology than doctor Zimmermann, so he just
wasn't going to consider his testimony. So back we go
to the appellate court. Now the judge couldn't get around
the fact that Melissa had confessed, and then she thought
it was a battle of the experts. They affirmed it.
(30:43):
So then we come back again. New state's attorney takes over.
He indicates he wants to meet with us, that they
have serious questions about Melissa's conviction based on the computer
evidence we presented. I hire Saul Casson, who looks at
the confession.
Speaker 1 (31:02):
Of course, Saulcassen is one of the foremost experts in
the world on false confessions.
Speaker 3 (31:07):
Sawcassen had tracked the case for years, so he thought
it was appalling. And then I hired the forensic psychiatrist
from Yale and we just started over. So the state
recommended a computer forensic company and said they would be
very comfortable with their findings. I had all the computer
(31:28):
analysis redone. They concluded my expert was spot on that
the images had been manipulated, and they went even further
and said they had been intentionally manipulated, that my expert
in no way had altered any data, and they completely
supported him. The experts from Yale have determined that the
(31:53):
sexual assault should have been a major part of the trial.
They've given me all of that information. And then of
course I have Nancy Jones, Affid David, and I have
an additional pathologist who's looked at said this was not
a murder. This was not a murder. This was a
child who had a severe head injury in October. That's
why his head circumference increased so dramatically. This was not
(32:17):
a murder. So in looking at it, we don't feel
we'll get relief from the trial judge. It's the same
trial judge. We have an action pending in federal court,
but it's backlogged horribly. So we're going to go to
Governor Pritzker with a clemency petition. I think that's our
best avenue at this point.
Speaker 1 (32:35):
The good news is you have one of the best governors,
and I believe that he will give this the attention
it deserves. There's only one conclusion you can draw. I mean,
this entire case has collapsed like a house of cards.
There's nothing there. It's insane. So is there a call
to action?
Speaker 3 (32:52):
I would encourage everyone to read our petition. I will
post it on our website Kathleen t Zelner dot com.
They'll be untached information in there for Governor Pritzker. If
people feel persuaded by it and feel there's been a
miscarriage of justice, I would strongly encourage them to write
directly to him. I think it would be enormously helpful.
Speaker 1 (33:14):
Great, we'll put links in the episode description, and then
with that we're going to turn to closing arguments, my
favorite part of every episode, which is where I have
the honor to thank each of you for joining us
here on the show. And then I'm going to kick
back in my chair, turn my microphone off, leave my
headphones on, close my eyes, and just listen to anything
(33:36):
else you want to share with me and our wonderful audience.
Speaker 3 (33:40):
So I would say to the audience that the way
I imagine and think about this case is I feel
as if I'm fighting for my daughter's life. He's about
the same age as Melissa. I believe in the history
of the cases I've had, I've had twenty three wrongful
convictions resolved. This is probably the worst one. And it's
(34:03):
hard to measure things, but I think it's because Melissa
is probably one of the best people I've ever met
in my life. She is a purely good person, and
I think anyone that looks at this case should be
outraged by the manipulation of the evidence to convict this
poor young girl of the murder of a child, and
(34:25):
the damage that's been done to her mentally. Having to
cope with this is indescribable. And so it doesn't matter
what I have to do. It does not matter how
long this battle takes. We are not going to stop
this battle. We are going to keep pounding on the
doors of justice till someone opens them.
Speaker 2 (34:47):
If people are out there then know of my case.
There's still time to do support letters on my vhas
and basically just pray for me and my family and
the other family as well. With the supporters that I
hear from. It gives me strength and it helps me
to stay strong. So just hearing from people through my
(35:09):
family and then telling me and others is just very helpful.
The support is just very uplisting for me. I just
hope and pray that everything goes well. And I thank
everybody sold so much from the Boutmary Heart of hearing
this and hearing my story and seeing that I am
(35:29):
innocent and they wrongfully convict me, and I just I'm
just grateful for people that reach out. Thank you very much.
Speaker 1 (35:43):
Thank you for listening to Wrongful Conviction. You can listen
to this and all the Lava for Good podcasts one
week early by subscribing to Lava for Good Plus on
Apple Podcasts. I want to thank our production team, Connor
Hall and Kathleen Fink, as well as my fellow executive
producers Jeff Kempler, Kevin Wartis, and Jeff Clyburn. The music
in this production was supplied by three time OSCAR nominated
(36:04):
composer Jay Ralph. Be sure to follow us across all
social media platforms at Lava for Good and at Wrongful Conviction.
You can also follow me on Instagram at It's Jason Flahm.
Wrongful Conviction is the production of Lava for Good Podcasts
in association with signal Company number one
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
Popular Podcasts
The Breakfast Club
The World's Most Dangerous Morning Show, The Breakfast Club, With DJ Envy And Charlamagne Tha God!
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
Decisions, Decisions
Welcome to "Decisions, Decisions," the podcast where boundaries are pushed, and conversations get candid! Join your favorite hosts, Mandii B and WeezyWTF, as they dive deep into the world of non-traditional relationships and explore the often-taboo topics surrounding dating, sex, and love. Every Monday, Mandii and Weezy invite you to unlearn the outdated narratives dictated by traditional patriarchal norms. With a blend of humor, vulnerability, and authenticity, they share their personal journeys navigating their 30s, tackling the complexities of modern relationships, and engaging in thought-provoking discussions that challenge societal expectations. From groundbreaking interviews with diverse guests to relatable stories that resonate with your experiences, "Decisions, Decisions" is your go-to source for open dialogue about what it truly means to love and connect in today's world. Get ready to reshape your understanding of relationships and embrace the freedom of authentic connections—tune in and join the conversation!