Melissa Calusinski - 610
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How you doing tonight, Aaron? I'm doing good, Justin. How are you feeling today? I'm doing all right. I'm going to be at AdvocacyCon March 28th through 30th. This is in Indianapolis, Indiana. Use code GYNY10 to get your ticket. And we have a lot of new patrons. Sign it up for our Patreon.

And we've begun to add in content that we've never had before, really. So thank you for the new ideas. So you guys all head out to patreon.com slash generation Y. So Aaron, tonight's case is involving a child death. Whenever there's a death of a child, you know, authorities are going to want to hold somebody accountable.

And as we all do, this is something that should never happen. And with that, what are we talking about tonight? Tonight, we're talking about the January 14th, 2009 death of 16-month-old Ben Kingan at a daycare. This was in Lincolnshire, Illinois.

So Benjamin Kingan was born August 31st, 2007 to Amy and Andy Kingan alongside his twin sister, Emily. Ben was one of four children and the family resided in an affluent suburb of Chicago. When Ben and Emily were nine weeks old, they started daycare at Minisubi where their siblings attended school.

And most of the families at the daycare were very well off, and it was considered a very high-end daycare from the reading I've done. So this is pretty normal. You drop your kids off at daycare because you got to go to work, right, Aaron? Yeah, it's a reality for many people. Ben attended for over a year with no major incidents until October 27, 2008.

So Ben went down for a nap and then a teacher went to get him from his crib after he woke and they found a bump on the back of his head.

So the staff notified Ben's parents and Amy spoke with their doctor about it. The doctor simply advised them to keep an eye on it and said, there's no treatment here, just keep an eye on it. Ben developed a fever two days later and on October 29th, Amy took him to the doctor. Now this time he was examined by Dr. Bruner, a different doctor in the practice who noted some swelling but wasn't too alarmed by what he was seeing.

Months later, on January 12, 2009, Ben developed a cough and then vomited multiple times at the daycare. He stayed home the next day and then returned on January 14 to Minisubi.

So he seems to be doing all right. The morning goes by without incident, but at around 3.30 p.m., it said Ben threw himself back and cried. Now, Nancy Callenger, a teacher in the room, thought Ben must have hit his head. And then he eventually stopped crying. So they thought, okay, well, he must have hurt himself. He's doing all right. So they put him in a bouncy chair. And according to Nancy, he fell asleep.

Another teacher in the room, Melissa Kalyusensky, noticed Ben wasn't looking right.

Just to her, he didn't look right. So at around 3.50 p.m., went and checked on him, and she called his name, touched his hand, but he didn't wake up. She noticed orange foam started to seep from his nose, and she tried again to rouse him, and he wasn't responsive. So at this point, she's panicking. She's alone in the room. She calls for help, and her sister Crystal enters the room.

They are checking on him. He doesn't appear to have a pulse. And Crystal started CPR while Melissa removed the other children from the room. And they'll end up taking him to the hospital.

So Ben was rushed to the Condell Hospital in Libertyville, Illinois. At the hospital, Ben went into full cardiac arrest. So whatever's happened is pretty serious. And I'm glad that they noticed something was wrong and they took him to the hospital right away. But to go from being unresponsive to full cardiac arrest within, I don't know, less than 30 minutes, this is a serious injury.

Yeah, the attending physician, Dr. Adriana Orozco, said his heart rate was extremely low, he wasn't breathing, and his eyes were fixed and dilated. That's a sign of brain death. Dr. Orozco noted Ben had a significant head injury. Ben never regained consciousness, and Dr. Orozco pronounced him deceased at 4.50 p.m. on January 14, 2009.

The next day, on January 15th, Dr. Yupul Choi performed an autopsy.

The doctor noted a skull fracture starting on the top, slightly back middle of Ben's skull and going to the right about one inch. He also reported that Ben had a significant injury to the back of his brain. His report noted no hemorrhage in the skin and musculature of the neck, backspin buttocks, arms and legs, but a bruise of the upper right arm as previously noted.

Ben's death was officially ruled a homicide due to cranial cerebral injuries due to blunt trauma of the head. So that sounds like some kind of violent event, according to this report.

So they're trying to figure out what happened. And around 9.30 a.m., January 16th of 2009, Melissa arrived at the police station for questioning. She was the last adult with Ben while he was conscious. So detectives are questioning her and they're trying to figure out if there was any abuse that was happening. Melissa goes through, recalls the events that occurred the day before, and...

The detectives immediately start questioning her and accusing her of harming Ben. But she denied that she did anything. She said she would never hurt a child. So at some point during this interview, they read her Miranda rights, and the interview became an hours-long interrogation.

I don't even know if this really went from an interview to an interrogation because from the moment she sat down, they were questioning her hard. And then they just say, you have the right to remain silent, but then they continue questioning her.

So for six hours, Melissa denies harming Ben. I think it's 79 times she says, I did not hurt this boy. And at around 1.30 PM, she claimed Ben had thrown himself backwards while sitting and hit his head. So now it's like, I didn't hurt the child. She's saying he threw himself backwards. He might've hit his head.

The detectives left the room and returned an hour and a half later at 3 p.m. They asked Melissa to take a polygraph, and she immediately agreed. She said, yes, let's get this figured out. But then they don't administer her a polygraph.

Officers presented her with an alternative theory. They said maybe there was an accident and that's how Ben was injured, trying to get her to open up a little. And after six hours, Melissa conceded that she may not have put Ben all the way down on the ground when getting him out of his high chair. She claimed now that he slipped and she dropped him and he hit the chair. His head hit the back of the chair.

So this is a different statement now after the one she had made previously where she didn't know what happened or he might have forced himself back. So it's an important part of an interrogation if you're working on someone and their story starts to change. Is that considered progress?

I mean, I think so. If their statement changes, then this is a red flag for the police because they're like, well, hey, you said you didn't hurt him and now you're saying this. But this is after six hours. Is this her trying to tell them what they want to hear? Or is this her actually telling them what happened?

So detectives left the room, then they returned at 4.10 p.m., and they're still pushing Melissa. You need to tell the truth. They told her about Dr. Choi's findings and insisted Ben couldn't have obtained that type of injury on his own. Approximately three hours after Melissa stated that Ben slipped and hit the chair, detectives told her she got frustrated with Ben and threw him on the ground.

She denied that claim, but an investigator interrupted her with one word, please. Melissa admitted she was frustrated and threw Ben on the floor. When investigators clarified if she threw him forcefully, she stated, really hard, yeah. Just moments after confessing, Melissa asked if they were almost done because she wanted to go home and see her parents and puppy.

So Melissa described and then demonstrated how she threw Ben to the floor using a notebook and a teddy bear. Police informed Dr. Choi of Melissa's account, and he experimented to see if it was possible. Each time investigators relayed Melissa's statement, Dr. Choi removed Ben's body from the morgue and inspected it. So he was describing to the police of whether her account was plausible.

And they would take this information and then go back to the interrogation room. Now, with each statement, he's like, okay, hit his head on the back of the chair, or is it plausible that she threw him down? But regardless of whatever input he's giving to the interrogators, they're coming back to Melissa and saying, that's not really adding up with what the medical examiner is saying.

The detectives obviously feel like they're making some headway here on this case, but they also interview other daycare staff, including Crystal, Melissa's sister, and Nancy, her co-teacher in the room. Melissa claimed Nancy was in the room when she threw Ben down, but Nancy stated that she didn't see or hear anything like that, and that she believed that Melissa would never throw Ben in the first place. She stated she set Ben down on the floor, and he threw himself back. She said he cried for a moment, and she thought he may have hit his head.

But there was no significant commotion in the room. She helped Ben sit up, and as she walked away, he threw himself back once more. Crystal also denied seeing or hearing anything before Melissa called for help. She told officers Melissa was visibly upset and crying when she entered the room. And right here, Aaron, I'm thinking Crystal saw him throw himself back. Crystal's the one that's claiming there's some sort of accident.

It's a little odd that they have Melissa in this interrogation room and not Crystal, but here we are. Melissa's the one that's being blamed for abuse, even though Crystal has said, no, he threw himself back and he hurt himself prior to Melissa entering the room. Yeah, it's like she's backing her coworker up. So is she not in cahoots? Right? That's what you're asking.

Why isn't she being interrogated as well? She's apparently siding with Melissa on this. And in fact, she's giving information that would explain what happened without a person being involved. And or, not that I want to throw anyone under the bus, I'm not trying to, couldn't it have been Crystal who did this? And then Melissa came across the boy when he was unresponsive? I mean, I'm not trying to say Crystal did anything here, but...

Wouldn't that be another theory, another thing that could have happened in the investigation? Oh, well, Melissa said that she came across this child who's unresponsive. She calls 911. She gets him taken to the hospital. Now we're talking to Crystal, who claims that she's the one that saw him fall or hurt himself. But somehow, Melissa's the entire focus of this investigation.

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Investigators charged Melissa Kalicinski with the murder of Ben Kingan. She was taken to another station for booking. And there, another officer asked Melissa to demonstrate how she threw Ben down using a baby doll. So, show us. She repeated the story, and at 9.27 p.m., video footage captured her reenactment.

Melissa held the baby in front of her, the doll, waist high with their back to her. She then bent at the waist, pulled her arms back and threw the baby toward the floor. She aimed the back toward the ground with the face pointed toward the ceiling. As she threw the doll, the doll landed on the floor and its head hit the back of the ground. So its head and back hit the ground.

Now they have video of her doing this, and it's a dramatic video because you see a woman essentially tossing a child to the floor, but this is all a reenactment. But you know damn well this is going to be used against her later, right?

Well, yeah. And that's, if we can say nothing more on this show, it's that when you give any ground to an officer while you're being interviewed, they will take it and run with it because their focus is to close a case. It's to solve a case. And if you're giving them anything to run with, they're going to run with it. They're not going to come up with excuses for you.

So whether you're guilty or you're not guilty, you have to stand your ground, especially if you're not guilty. You need to tell them, this is what I know. That's all I know. You can't make up stuff because once you do, you enter a different world, one that you no longer have any protection in.

So the next morning, January 17th, Melissa's placed in the back of a squad car. And at 9.16 in the morning, video footage from the squad car, 91, captures Melissa, who again denies she hurt Ben and claims she's innocent. This is in the squad car. She's just saying this. She was questioned from 9.30 a.m. until 7 p.m. That's nine and a half hours.

She was left alone in the interrogation room for long periods of time. She didn't eat or use the restroom. And when she's in the squad car, she again is saying she didn't hurt Ben. So we have most of her statement is I had nothing to do with this.

And I think the key part to take away from this is when you have a false confession, it's usually done because the person wants out of that room. Whatever they have to say, whatever they have to do, they're just done being in there because they've been in there for many hours. And so that's kind of a flag here, something to look into further.

At the time of her arrest, Melissa Kalicinski was 22 years old and the youngest of five kids. Melissa had an overall IQ score of 82 and a verbal score of 74.

Now, I don't want to make too big a deal out of this because I don't think a lower IQ makes someone a bad or lesser of a person. But just know that when you're up against detectives and you have to communicate with them, this could be an issue. Her scores were just above the limit of an intellectual disability. At times, she had trouble putting into words how she felt, and she couldn't always understand others. She was bullied as a child, but found refuge in drawing and art.

And as far as everyone knew, Melissa loved children, and she even babysat for a family with multiple kids as her first job. She was experienced. She was very close to her sister, Crystal, who helped her get the job at Minisubi. She'd worked as an assistant teacher for a few months before Ben's death, and investigators found no history of reported misbehavior with the babies.

This is a big deal. Obviously, if you're being charged with the murder of a child, a defense needs to take account of all the things that are going on with their client, including how easily they could be manipulated in an interrogation room.

So it's on January 22nd of 2009. The Chicago Tribune reported a former co-worker and parent complained about Melissa to the administration at this daycare center. Melissa worked at another mini-SUBI center in Arlington Heights before she was transferred.

Now, this parent wrote a letter to the administration in August of 2008, stated, Melissa needed more training as the classroom was chaotic. The parent also claimed she left the daycare that same month, partially because of Melissa's inability to control the classroom. Former coworker at Arlington claimed she was concerned when she saw Melissa grab a child's arm and told an administrator.

So now they're digging into her background. They're finding that she wasn't the best at controlling children and she might have grabbed one of their arms.

According to the article, a Department of Children and Family Services report found the Lincolnshire Minisubi had three violations in 2007. The daycare failed to notify DCFS and parents of an emergency and failed to supervise the children. Two weeks after Ben's death, the Lincolnshire location, which Ben attended, was shut down by the state. A few months later, on March 31st, the Chicago Tribune reported the Lincolnshire Minisubi owner,

Judith Katz, was arrested for obstruction of justice just the day before.

Police stated three days after Ben's death, Katz told her employees there were two teachers in Ben's room at the time of the incident. However, detectives were sure Melissa was in the room alone and Katz attempted to cover up the violation. Sadly, Katz died of heart failure as a complication of cervical cancer on April 15, 2012, one day before she was set to go to trial. And before we go on, this is a big deal because this to me sounds like a difference between

opinion or, you know, differences in what are perceived as facts. Because according to Katz, she's saying, no, there were two people in the room and detectives are saying just Melissa was in the room. How would they know better than her, than the woman that runs the daycare who was in the room? That's what I don't understand. And I don't understand how they can just say, oh, not only are you wrong, but we're going to take you to court over this.

This report is going back and going through all the violations of this daycare center. And yeah, they have a few violations here. I'm sure every single daycare center probably does, just like every restaurant has a health violation.

So this is making them look, this makes the daycare center look totally incompetent. It's just reinforcing this, well, Melissa could have gotten away with all of this abuse because look, this daycare center failed to notify DCFS and all of this stuff. This is just chaos here. And so they're really painting a bad picture of Melissa and this daycare center and everyone that's running it.

Melissa Kalicinski's trial began in November 2011 and lasted for two weeks. Prosecutors argued there was a commotion in the room, and Melissa threw Ben to the ground out of frustration.

They do have information that says that Melissa didn't do well when things got chaotic and she had grabbed a child's arm previously, or so they allege. So they're putting this together as things got out of control, she got out of control, and Ben got hurt. They stated the head injury that occurred on the afternoon of January 2009 is what killed Ben, as indicated by the skull fracture and internal bleeding.

Now, her defense argues that Ben died due to a previous head injury in October of 2008. In her taped interview with detectives in January of 2009, Ancy stated Ben would throw himself back and hit his head. She also claimed Ben was lethargic and slept often.

Furthermore, she and other staff members claimed they didn't hear any commotion in the room that day. No one reported any screaming, crying coming from that room. The defense claimed the lethargy, frequent sleeping, and vomiting that occurred on January 12th were all indications of a head injury. They argued Ben died to his previous injury and cumulative headbanging.

And Aaron, I don't have kids, but I've been around all my friends that do have kids. I see kids out in the wild and man, they will throw themselves back. They will just slam their head into walls. They will do everything they can to hurt themselves. And I don't mean to. Yeah, they're little ones. They don't, you know, I mean, so I'm not thinking that this is that far fetched at all. I mean, just from my point of view, Ben had a

a pattern of behavior where he would throw his head back or throw his whole body back. I'm like, that doesn't seem like they're trying to cover anything up here. That doesn't seem like they're trying to say, nobody hurt this child. This child actually had a pattern of behavior. And it

It makes sense to me in my head when I'm hearing this. And he had an injury prior from this exact same behavior or this same thing he would do. So it's making sense to me, but that's all I'll say.

Well, the other thing to note here is that the prosecution starts out by saying there was a commotion in the room. Well, that's not backed up by anybody that worked at this daycare. And you could say, well, they're all closing ranks. But really, I mean, there is no evidence as far as we can tell that there was commotion. And so when they start by saying there was a commotion in the room.

That's something the detectives are saying, and that's something the prosecution is saying, but that's not what people at the daycare are saying. So there's already a difference of perception or of their beliefs. So it's really difficult to understand this. This seems like a very difficult trial already. And the prosecution, of course, they're going to rebut the defense. They state the vomiting began January 12th due to a stomach bug. A doctor from the pediatrician's office testified the vomiting and fever...

were unrelated to the bump on the head. At the time of the October 29th visit, the doctor did not take x-rays because the skull didn't appear to be fractured and Ben didn't exhibit other symptoms associated with the head injury. Furthermore, during a brief visit on January 13th, when Amy went by to get a prescription, the doctor observed Ben while he played with toys and thought he was behaving and acting appearing normal.

But I think this is a little misdirection. I could say, yeah, the vomiting and fever could have been a stomach bug. Absolutely. But him sleeping all the time, all these other things, those kind of bridge the gap of stomach bug and a concussion or a head injury. So I don't know if anyone would have said, oh, he had a fever because he hit his head. But they're saying he had all of these symptoms and it was probably from a prior injury.

injury. So this is the prosecution doing a very good job rebuttaling because they're saying, no, he had a stomach bug and we have proof he had a stomach bug. So this prior injury all are talking about didn't happen. So you're just making it up. There were photographs of Ben's skull from the autopsy showing a small fracture on the outside and inside of the skull. And Dr. Choi testified he saw a visible skull fracture and fresh blood beneath Ben's scalp.

He was talking about a subdural hematoma. And another forensic pathologist, Dr. Manuel Montes, testified for the state and supported Dr. Choi's findings. He testified that he examined Ben's skull the day after the initial autopsy, and he felt the fracture himself. He removed his gloves and could feel the ridges of the fracture inside the skull as he moved the bones. He believed the fracture was recent because it wasn't sticky, which would have indicated healing had been taking place.

So this is a big deal because they're showing that something did happen to this child. It wasn't the child himself because this injury would be too significant. It would mean it's more likely that Melissa threw the child down. That's what they're saying. The prosecution, what did they find? Well, it's November 16th of 2011. The jury deliberated for seven hours and they returned with a guilty verdict of first degree murder.

Now, that's pretty harsh because I would just assume first degree means you planned it, you did it with a felony, a lot of different other factors here. I would assume second degree or manslaughter, but no, they come back with a first degree murder verdict and she's guilty. And I'm kind of shocked by that because even if she had thrown this child to the ground in a fit of rage,

To me, that's not first degree, but it's a child and this is a very charged and emotional case. So this is how the jury finds. Three months later, February 23rd of 2012, she is sentenced to 31 years in prison.

Yeah. And so that's where it stood until four years later in June of 2015, Paul Kalicinski, Melissa's dad, received an anonymous tip that there were x-rays of Ben Kingan that weren't provided in court. Melissa's defense team was provided a CD containing x-rays in September 2011, a little over a month before trial began.

The state informed the court the images were not part of discovery sooner due to a confusion in the coroner's office. The images provided by the state were dark and unclear.

After the tip, Paul Kaluzinski called the New Lake County coroner, Dr. Thomas Rudd, and told him about these new x-rays. Well, new to them. And so this call prompted Dr. Rudd to look into the situation. The physical file from Ben's autopsy didn't have images, and so he requested them from the deputy coroner. When he got the file, he looked through the images, and he was shocked.

He said he saw no evidence of a skull fracture in the x-rays. So he started showing these images to other pathologists and radiologists, and they all agreed they didn't see a skull fracture. So this directly contradicted Dr. Choi's testimony and the prosecution's case during the trial, where he's saying there was a severe skull fracture and it was fresh. So it had just been caused right before they took him to the hospital.

Moreover, there were three x-ray images, one of Ben's skull, a second of his upper body, and a third of his lower body. These additional x-rays of the torso and upper and lower extremities lacked evidence of any type of abuse, didn't have any bruises on him, didn't have any broken bones. Obviously, you don't see bruises in the x-rays. The x-rays didn't show any evidence of spinal or rib injuries. He didn't have any cuts, scrapes, bruises.

And in Dr. Choi's initial autopsy report, he only noted one bruise on Ben's upper arm. So according to Dr. Rudd, if Melissa had thrown Ben, as stated in her confession and video, there would have been other indicators and injuries that would have happened or possibly appeared on these x-rays.

In an interview with 48 Hours, Dr. Rudd stated it was impossible for Ben to have a severe skull fracture and have no wound on his scalp. I think that's pretty telling.

Yeah, Dr. Rudd didn't see a skull fracture, but he did note Ben had an abnormally large head. He described the shape as a traditional light bulb, very round and not the normal shape of a 16-month-old head. Children of Ben's age normally have an oblong-shaped head, and the rounded shape was a sign of brain swelling.

During a routine checkup in December of 2008, when Ben was 15 months old, his head circumference measured in the 75th percentile. That's an increase from previous appointments where he landed in the 50th percentile. The doctor was not concerned and considered this a healthy rate of growth. However, at his autopsy just a month and a half later, his head circumference had increased to the 95th percentile.

So are we assuming that this is from swelling from a previous injury? Is that kind of what they're indicating here? That's what we would take away from this, yes.

So they're using samples taken during the original autopsy performed by Dr. Choi, and Dr. Rudd found a membrane on Ben's brain. In other terms, a scab. This is an indication of scar tissue from an old injury. And when examined under a microscope, Dr. Rudd found iron in Ben's brain. They appeared as microscopic blue dots among a mass of pink.

So Dr. Rudd noted he could see the evidence with his naked eye on a slide before placing them under a microscope. So he's saying he had a prior injury. It appears that he had scar tissue and iron or blood droplets in here. He's not saying blood droplets because it's more of a scientific technical thing, but he's saying this is what I'm finding. So there obviously was a prior injury.

Dr. Rudd obviously is finding things here that are alarming, so he goes for a second opinion from Dr. Nancy Jones, who's a forensic pathologist. She's performed over 10,000 autopsies.

She agreed with Dr. Rudd's findings. White blood cells that contained iron particles were absorbed and formed the membrane, or scab, that Dr. Rudd discovered. Dr. Jones estimated the injury was about two to three months old, and Ben had suffered at least one previous subdural hemorrhage, meaning Ben suffered from a brain bleed before his death on January 14, 2009, and she noted that Ben had symptoms of a head injury two days before his death when he repeatedly vomited and was lethargic.

Again, this is important because if you say that someone hurt this child and the child died as a result of it and you have the fracture in the skull to prove it, but that fracture doesn't exist and the child was showing symptoms days before their death,

then you can no longer really say with confidence that Melissa Kalasinski must have thrown him down on that date and then he died. That's what we're getting at here. Because you wouldn't see a scar, you wouldn't see some of the other evidence you're seeing here. And then, of course, where is this fracture at? This fracture that they claim they could feel with their own hand as they examined his head.

The old injury was significant, about four inches by four inches, and was exacerbated by Ben's frequent headbanging. What would have been a minor injury on January 14th became significant damage.

Ben could have died any time he threw himself down or bumped his head. It wouldn't take excessive force to cause his death. So when Ben hit his head on January 14th, the fluid of that pre-existing injury added pressure on the already swollen brain, pushing the brain down further and then shut down his ability to breathe.

That's scary. You wouldn't think a couple bumps on the head could do that. But again, these were significant enough to cause this problem. So they go and they talk to Dr. Choi because he's the one that said, oh, there's this fracture here. We know what happened. It's a murder.

In a signed affidavit, Dr. Choi admitted to his error. He said,

Hmm. This is a change. Yeah, this is a change. And in July 2015, Dr. Rudd reclassified Ben's death from homicide to undetermined with the permission of the state of Illinois. He concluded the x-rays provided new evidence in Ben's case, and that Ben didn't die from the skull fracture, but from a long-term head injury. The state maintained the injury still could have been caused by Melissa.

Ben's parents also believe Melissa had done this and is guilty. But I think at this point, Aaron, we're looking at

prosecution said there was a commotion in the room. There wasn't one. Prosecution and investigators are saying Melissa was the only one in the room when this happened. When it's possible, there was a couple people in the room. Also, we have Crystal who said she witnessed Ben hurting himself. And then Melissa saying she came across him when he's unresponsive. Full stop. To me, that's benefit of the doubt.

I don't think you can find somebody guilty when you don't have anything backed up prior to this incident. You're getting all the facts wrong, and I'm talking about the prosecution. Before we even get to the medical examiner and the reclassification of his cause of death, I don't understand how anyone could have found her guilty beyond a reasonable doubt with that information.

So obviously, Melissa's going to appeal, right? Yeah, and she had appealed her conviction before these new findings, these new x-rays, well, new to them. And so she was going to appeal again because now this is different. Now she has even more to run with here. And during a 48-hour interview, Melissa Kalicinski's new attorney, Kathleen Zellner, claimed that clear x-ray evidence was not only withheld but tampered with.

Zellner stated that State manipulated the images and withheld the clear ones because remember when they had those other images, they were very dark. These newer images, or I guess the images they hadn't known of before that were given to them, well, those were clear. They weren't dark.

According to Kathleen Zellner, this is on purpose. And that's because Lake County had already lost millions of dollars in wrongful conviction cases that have been overturned. And withholding evidence is a Brady violation, if proven, can overturn a conviction. So according to Zellner, the phone call to Paul about a second set of x-rays had to come from someone with inside knowledge. She claimed that this supported her theory,

that the x-rays were intentionally withheld from the defense in 2011 so they couldn't really use them. The defense should have been provided all of the x-rays, not just certain ones. So she's not wrong. This is a Brady violation.

You know how this bothers me? I know this is not going to be exactly the same thing, but have you ever ordered food from a restaurant and they bring your food out and it's burnt, like really badly burnt? And you wonder, why did you bother bringing this to me? This isn't something I can use. And the same thing with the x-rays. If you're giving dark x-rays where you can't really make out what's going on, we have come to expect so little, Justin.

They'll say, oh, well, these people aren't as experienced as investigators or their sound equipment wasn't very good. They were using an old camera that's from an old phone to take the pictures. They've got to work with what they have. Not good enough because apparently there were good x-rays available. They just didn't turn them over. I mean, how do you prove it was done on purpose? I would say, where is the empathy here for someone who's suffered a conviction and

and being blamed for a horrible death when there's evidence now that, wait a minute, maybe they misjudged this all. Why don't they actually look at it as new evidence? Well, you know what they're going to do. Just like Dr. Choi's statement he put out. He's like, well, I made a mistake. There was a prior injury, but I still think Melissa did this. It's like, what? You're saying that you got your entire autopsy wrong, essentially, but you're

You're still doubling down that Melissa caused this injury. Okay, got it.

Obviously, this isn't flying with Melissa's defense team. And in June of 2015, they filed a petition for a new trial. A year later, Judge Daniel B. Shaines, the same judge who presided over the 2011 trial, granted an evidentiary hearing. The hearing allowed new testimony based on the newly discovered evidence. This was one step closer to a new trial because this is what you have to do

And in September of 2016, the judge heard three days of testimony from opposing expert witnesses. And this is where at least there's a judge looking at this because I feel like a lot of jury members can be swayed by expert witnesses just based on charisma alone. And if your expert witness can connect with the jury member better than the other guy, science, facts, and evidence be damned. And so we're hearing from...

from the defense and the prosecutor, and they're going over these x-rays, they're going over all this medical information, and they're trying to deny the other person's sources and deny the other person is correct in their findings. And this is why cases can go right or wrong, depending on how much money you have for an expert witness.

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So, Melissa's attorney back in 2011 was Paul DeLuca, and he testified that he never saw clear x-rays before the trial. He did say that the state gave him a CD of images, but those images were dark and unclear. The state said, look, we gave you a CD of images along with software so you could brighten them. How ludicrous is this? I mean, you're literally saying, well, we could have brightened these and then given them to you, but we left you to do the work, you know?

This makes no sense. So DeLuca said he wasn't able to get the software to work, and the state called a witness who demonstrated with ease how to brighten the images with a few clicks. The defense called their own technical expert who testified the images could have been easily manipulated with software like Photoshop.

Again, though, you're leaving it up to the attorney who's got to build a whole case to fix some images. This should have been done before he got them, my opinion. I don't know what the audience thinks, but I'd like to hear, do you think this is okay?

I get like, hey, just give me the raw files. But if the raw files aren't exactly usable without some manipulation, then you need to manipulate them. You need to make it clear to everybody looking at this x-ray where the fracture is. And if you're giving them the worst quality image possible, and they might have ran it through a photocopier a couple times just to make sure, I mean, come on.

It bothers me because if you are going to give somebody a photo of something to prove guilt beyond a reasonable doubt, it should be clear as day, not as mud. Yeah. What are you hiding?

So obviously you have opposing viewpoints here. The state's experts are saying Ben did have a previous injury, but it's not related to his death. They also agree with Dr. Choi's original finding that Ben had a skull fracture that wasn't visible in x-rays.

The defense called on Dr. Robert Zimmerman. He was at Children's Hospital of Philadelphia. He was the chief of pediatric neurodiology and chief of pediatric magnetic imaging. He's world-renowned in the world of brain imaging. He didn't see a fracture in the imaging, and he stated, if the skull fracture was seen with the naked eye, it would be seen on the x-rays as well.

I mean, why do we even use x-rays if everyone can see everything, right? This implied that the fracture was not present or as severe as depicted by other experts in the original trial or this hearing.

I agree. If you can see it, then an x-ray is going to pick it up because I've taken my mom in, I've taken other friends in for issues they've had, and they've had tiny hairline fractures that you would never know about unless you had an x-ray. So if something's visible to the naked eye, then it's going to show up on an x-ray.

There was some unexpected testimony from Paul Foreman. He served as the deputy coroner at the time of Ben's death and autopsy. He took the x-ray images in question on January 15th during the first autopsy.

Though there were a total of three images on the computer, he testified he took five images. He claimed he was present for the second autopsy on January 16th, and Dr. Montez could not have examined Ben's skull because he closed and sutured Ben's head on January 15th.

In a 48-hour interview, Foreman reasserted all of his testimony and claimed Montez never entered the autopsy room and only examined Ben's injuries from files and photos. Wow. He took five images, but they're only shown three. And he says that there wasn't any other examination done of the child.

Except from files and photos. Yet, this is in complete contradiction of what the prosecution and initial autopsy reports are saying, right? Yeah, you'd think this would be stunning information. This is the mic drop part, right? You would think.

Officer David Thomas testified on behalf of the prosecution and refuted Foreman's testimony. Thomas was also present for the January 16th autopsy. He confirmed a photograph he was shown from the autopsy accurately depicting Ben's condition when he entered the room. The photo showed Ben lying on the table and the top of the skull was absent. Thomas added the skull was placed back on for them to do the experiments that Dr. Choi performed.

The January 16th autopsy was the same day Melissa was interrogated and eventually confessed and reenacted how she threw Ben. Thomas described how Foreman used white twine to stitch the head closed. Additional photographs from the autopsy corroborated this statement. So now we have two people who have completely different viewpoints, completely different testimonies.

He does have some photos and he's talking about dates here. So, Officer David Thomas might be slightly more credible because he has things showing there, but I don't know. It's who do you believe and it's up to a judge now.

September 30th, 2016, Judge Shaines denied Melissa a new trial because Judge Shaines didn't find Foreman's testimony as credible. The coroner's computer revealed Foreman only took three x-rays, yet he testified he took five, and he told officers during his initial interview he only took two.

The judge found the defense had access to the clear images because the software was included on the CD. Now, before we go on with that, I want to say what CD, what software, what computer, what operating system? Because was this Apple? Was this Windows, right? Because a lot of times you can't use the same software on both. I mean, they're completely different operating systems. So unless they included different software on there that could be used depending on what kind of computer you had, this could be a limitation, right?

Sort of in the prosecution's defense, they're saying you were provided a CD with software. Now, if you had trouble with it, you could have told us and we would have maybe helped you. But the prosecution's saying you didn't even try and you're just saying that we didn't give you the right information. And that's what the judge found and agreed with. The judge is saying you could have done more here. I mean, you could have sought outside help, get someone to help you with the images, but it just didn't happen.

Obviously, Kathleen Zellner appealed Judge Shane's ruling. On April 18, 2018, Zellner presented oral arguments to the Illinois Court of Appeals for a new trial. And these oral arguments included the same sentiments as the evidentiary hearing. The appeals court sided in favor of Judge Shane's ruling and affirmed Melissa's conviction. So this is interesting. It's like Zellner saying, no, no, no, that was the wrong ruling. We're going to do this again.

But that court just sided with the prior court. That happens all the time. And I feel like if you don't bring anything else to this, if you don't bring another type of argument, how are they going to find it differently? So because they affirmed the conviction, now you have the Illinois Supreme Court in September of 2018 denying Melissa's petition for leave to appeal.

Basically, they're saying we're declining to consider your appeal at the state Supreme Court level. So now she's left with, well, I guess the federal courts.

Again, it's not just these two expert witnesses claiming the other one's wrong. There's a lot more issues with this case than just that. And it just seems like that was the strongest arguments they had, so that was what the appeal was based on. But as a whole, I'm thinking there's other issues with the original trial. And it seems that those things weren't the crux, weren't the

main thrust of this consideration of denying this appeal. And again, we see it every day and I just think, man, I think that the discrepancies in the prosecution's initial trial should have been considered also. Because I think if you take the totality of it all and not just, oh, was there three or five x-rays? Oh, we put the software on there or we didn't put the software on there.

I mean, that's what somebody's life hinges on. Okay. Well, I think what it hinges on is, and it seems to be a legal thing. If you were found guilty, then you're guilty.

And if you're saying that you have x-rays that prove that there wasn't a fracture, it's almost like they're saying, yeah, possible, but she was found guilty. So we're moving on. And you can't say it's new evidence because those x-rays were given to her defense team back when. And just because they were dark and you couldn't read them properly doesn't mean that we have anything owed to you. So again, it comes down to Melissa Kalicinski was found guilty. So she's guilty.

Even if you can say scientifically that this looks like the poor child had a prior injury and that's what caused all this to happen. Well, they don't care because she was found guilty and it's over.

Let's talk about what's happened since, because, you know, the sad thing is, is a child did die. Benjamin Kingan died. And in March 2010, Amy and Andy Kingan settled a civil suit against Minisubi Daycare. They were awarded $2 million. That was the maximum under the daycare's insurance policy. And the family spoke to reporters after court rulings, but mostly they declined interviews.

Ben's tombstone reads, Our angel in heaven, you were taken from us before your time. Your life was the most special gift we could receive. We will always love you, Benny. Melissa remains in prison and continues to fight for a new trial. But I do want to say that it is unfortunate that a child died. And I can't blame the parents for why they see things the way they do, because they have to trust law enforcement to get to the bottom of what happened.

And probably in their minds, they see this as they worked really hard on the case. They got Melissa to confess. And then she had second thoughts about confessing and worked to try and throw out those confessions. But probably in their minds, why would she confess if she didn't do it? And so they probably rest easy knowing they got a conviction and there was some justice for their child.

Yeah. It's as simple as that is our child's dead. He was in the care of this child daycare and the police, the investigators, the prosecution got a guilty verdict. That's it. It's as simple as that. I understand why they feel that way.

But you have to be able to sit back and look at this case with an open eye for all the things that were said, done, things that went wrong. And I guess that's where I just think it was a tragic accident. And nothing here really adds up to me a homicide. At most, it would be a manslaughter charge if I were to actually, for sake of argument, agree that Melissa had thrown this child to the ground.

Yeah, so a very unfortunate case. I'd like to hear from everyone what you think happened here. Do you think it's odd that there are no other injuries to explain this? As we said, if there's a skull fracture, there should be other injuries, especially if the child was thrown to the ground, you'd think there'd be bruising all over. And they just didn't find that. And also, I'd like to know, when it comes down to it, like I described,

If there's a conviction, then there is no questioning how they got to that conviction. Because it seems to me, at least in this case, that the prosecution wasn't really able to back up their theory. I mean, what they had to do is basically say that the daycare staff lied to them about who was in the room at the time and how things went down. And then they also had to say, well, someone felt guilty.

the fracture. They felt it. So they know it was there, even if it didn't show up on x-rays. Is that really something that you can buy? So let us know. You can reply to us on our social media. You can message or email us or reply to us on our Patreon. Hey Prime members, you can listen to Generation Y ad-free on Amazon Music. Download the app today.

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