WEBVTT - #459 Jason Flom with Melissa Calusinski 0:00:02.440 --> 0:00:05.800 January fourteenth, two thousand and nine, was an unremarkable day 0:00:06.280 --> 0:00:11.720 at a daycare center in Lincolnshire, Illinois, until the afternoon 0:00:12.119 --> 0:00:16.079 when a daycare provider named Melissa Kallyauzinski called out to 0:00:16.120 --> 0:00:20.759 her coworkers for help. A sixteen month old boy in 0:00:20.800 --> 0:00:24.720 her care had become unresponsive. Nine on one was called 0:00:25.200 --> 0:00:30.360 CPR was performed, but the infant never regained consciousness. After 0:00:30.440 --> 0:00:35.000 two autopsies, a forensic pathologist reported a rear skull fracture 0:00:35.080 --> 0:00:38.840 and massive bleeding that he believed were caused by blunt 0:00:38.920 --> 0:00:43.400 Ford's head drama, and after a fourteen hour interrogation, Melissa 0:00:43.440 --> 0:00:46.400 told investigators what they wanted to hear, which sent her 0:00:46.440 --> 0:00:51.479 away for thirty one years. But this is wrongful conviction. 0:00:57.920 --> 0:01:01.360 Wrongful conviction has always given voice to innocent people in prison, 0:01:01.400 --> 0:01:05.000 and now we're expanding that voice to you. Call us 0:01:05.319 --> 0:01:08.360 at eight three three two o seven four six sixty 0:01:08.360 --> 0:01:10.679 six and tell us how these stories make you feel 0:01:10.880 --> 0:01:13.280 and what you've done to help the cause, even if 0:01:13.319 --> 0:01:16.160 it's something as simple as telling a friend or sharing 0:01:16.160 --> 0:01:19.480 on social media, and you might just hear yourself in 0:01:19.520 --> 0:01:23.039 a future episode. Call us eight three three two oh 0:01:23.040 --> 0:01:36.120 seven four six sixty six. Welcome back to Wrongful Conviction. 0:01:36.959 --> 0:01:39.160 I don't even know if I'm ready for this one, 0:01:39.520 --> 0:01:43.240 because this case just hurts my heart. It's an incredible 0:01:43.480 --> 0:01:47.920 story of a wonderful young woman who has been chewed 0:01:48.040 --> 0:01:51.040 up and spit out by a system that is well 0:01:51.440 --> 0:01:54.880 unfortunately designed to do just that. And I'm talking about 0:01:55.040 --> 0:01:58.800 Lissa Kyle Yazinski. Melyssa, thanks for being here. I'm happy 0:01:58.840 --> 0:02:01.240 you're here, but I'm sorry you're here under these circumstances. 0:02:01.440 --> 0:02:02.640 Thank you for having. 0:02:02.400 --> 0:02:06.960 Me and with Melissa today. Kathleen Zelner, as many of 0:02:06.960 --> 0:02:11.200 you may know, one of the most accomplished criminal defense 0:02:11.440 --> 0:02:15.560 appellent attorneys in the country. She's been responsible for dozens 0:02:15.880 --> 0:02:19.960 of exonerations, including some you've heard about on the show 0:02:20.000 --> 0:02:23.640 like Ryan Ferguson. Kathleen. I'm so excited that you're here. 0:02:23.919 --> 0:02:25.919 Thank you. It's a great opportunity. 0:02:26.400 --> 0:02:29.239 This case is one of the more obvious wrongful convictions 0:02:29.240 --> 0:02:33.200 we've ever seen, and it involves a false confession, junk science, 0:02:33.320 --> 0:02:41.120 corrupt practices, lying, compromised witnesses, and it goes downhill from there. 0:02:41.320 --> 0:02:45.240 This is a thirty one year sentence of a young 0:02:45.320 --> 0:02:47.880 woman who was working in I think what we could 0:02:47.880 --> 0:02:51.440 all agree is a noble profession right doing daycare, and 0:02:51.919 --> 0:02:54.359 she was almost certainly Is it fair to say, Kathleen, 0:02:54.440 --> 0:02:56.160 she was convicted of a crime that never happened. 0:02:56.520 --> 0:02:59.440 Yes, this is not a murder. This is just a 0:02:59.560 --> 0:03:03.519 complet botched forensic case. 0:03:04.160 --> 0:03:06.880 This case is similar to a shaken baby syndrome case, 0:03:06.960 --> 0:03:10.080 in which a child succumbs to various complications that are 0:03:10.080 --> 0:03:13.360 assigned both a violent cause and an assailant. The most 0:03:13.480 --> 0:03:17.760 recent caregiver in this case, that's Melissa, who never even 0:03:17.800 --> 0:03:20.600 got close to being in trouble before this incident, but 0:03:20.760 --> 0:03:23.360 rather led a quiet life growing up in a loving 0:03:23.440 --> 0:03:26.119 family and a working class suburb of Chicago. 0:03:26.560 --> 0:03:29.799 I grew up in Carpentersville. I mean, it's just your 0:03:29.880 --> 0:03:34.520 typical suburban neighborhood. My parents' names are Paul and Shurrel. 0:03:35.040 --> 0:03:39.200 Still live in the same house. I'm the youngest of five. 0:03:39.760 --> 0:03:43.160 I have two older half brothers, my middle sister who's 0:03:43.160 --> 0:03:45.560 a year older than me, and Crystal. Me and her 0:03:46.280 --> 0:03:49.520 kind of did the same thing growing up. She babysat, 0:03:49.640 --> 0:03:51.960 I babysat We Love Children. 0:03:52.400 --> 0:03:55.120 Melissa got the chance to work at this daycare center. 0:03:55.160 --> 0:03:58.560 It was called the Minnie Sabidi in Lincolnshire, which was 0:03:58.600 --> 0:04:01.160 a relatively Affluich Chicago suburb. Right. 0:04:01.360 --> 0:04:05.000 I ended up going to the Arlington Heights one for 0:04:06.320 --> 0:04:10.080 majority of the time that I worked for many sube. 0:04:10.240 --> 0:04:14.240 When I transferred to the one in Lincolnshire, my sister 0:04:14.400 --> 0:04:17.120 was working there and my nephew was there. He was 0:04:17.160 --> 0:04:20.479 just a baby. The children made my day. I didn't 0:04:20.480 --> 0:04:24.200 even care if late I had baby pew coming. Yeah, 0:04:24.240 --> 0:04:27.200 it smelled, but I mean I still loved what I did. 0:04:27.960 --> 0:04:31.680 How this begins is that there was a young child 0:04:31.720 --> 0:04:35.760 there named Benjamin Kingen. What do we know about the 0:04:35.800 --> 0:04:38.800 pre existing conditions that now have come to life? 0:04:38.880 --> 0:04:42.320 In October of two thousand and eight, Melissa hadn't even 0:04:42.360 --> 0:04:45.719 started working there and there was an incident at the 0:04:45.800 --> 0:04:50.160 daycare center. That incident was totally concealed from the parents. 0:04:50.240 --> 0:04:52.640 It was not written up, the word was put out 0:04:52.680 --> 0:04:56.680 by management. Nobody was to really talk about it. They 0:04:56.720 --> 0:05:00.359 were playing a game and one of the teachers aides 0:05:00.480 --> 0:05:05.400 had a plastic bat and was witnessed swinging the bat 0:05:05.480 --> 0:05:09.760 and they were throwing this plastic ball and she accidentally 0:05:09.920 --> 0:05:14.120 hit Ben in the back of the head. That manifested 0:05:14.160 --> 0:05:18.760 itself in a really goose egg sized lump on his head, 0:05:19.200 --> 0:05:22.920 But when he was taken to his pediatrician, the mother 0:05:23.040 --> 0:05:26.719 didn't know the circumstances. She just thought maybe he was 0:05:26.760 --> 0:05:29.960 a headbanger because he had some stomach problems, so he'd 0:05:30.000 --> 0:05:32.800 throw himself back on the floor. So the mother had 0:05:32.880 --> 0:05:36.240 no idea the severity of the blow, so when she 0:05:36.360 --> 0:05:40.719 took him to a pediatrician, she minimized what happened, and 0:05:40.760 --> 0:05:44.240 the pediatrician opted not to do a CT scan, But 0:05:44.360 --> 0:05:49.560 that subdual heimatoma, that pre existing injury, was there all 0:05:49.640 --> 0:05:53.800 those months and tragically resulted in his death from a 0:05:53.880 --> 0:05:56.719 subsequent incident where he banged his head. 0:05:57.160 --> 0:06:01.080 Pediatricians regularly monitor the height, weight, and the head circumference 0:06:01.120 --> 0:06:04.440 of infants and toddlers. Before this incident in October two 0:06:04.480 --> 0:06:07.040 thousand and eight, both Ben and his twin sister's head 0:06:07.080 --> 0:06:11.279 circumferences were in the fiftieth percentile. However, leading up to 0:06:11.360 --> 0:06:15.440 the day of Ben's tragic passing, Ben's had rapidly expanded 0:06:15.800 --> 0:06:19.640 into the ninety fifth percentile by January fourteenth, two thousand 0:06:19.640 --> 0:06:20.039 and nine. 0:06:20.520 --> 0:06:25.279 Yeah, so January fourteenth of two thousand and nine. Ben's 0:06:25.360 --> 0:06:28.440 mother brings him to the daycare center, but he has 0:06:28.520 --> 0:06:32.719 been at home for two days and he's done some 0:06:33.000 --> 0:06:38.240 projectile vomiting. He's lethargic, which is a classic sign of 0:06:38.320 --> 0:06:41.559 a head injury head trauma. She brings him in because 0:06:41.560 --> 0:06:44.880 she thinks he's feeling better. And so Melissa noticed that 0:06:44.960 --> 0:06:48.000 he seemed a little tired, but nothing that really stood 0:06:48.000 --> 0:06:48.719 out to her. 0:06:49.120 --> 0:06:51.800 I mean, it was just a normal, usual day. They 0:06:51.800 --> 0:06:56.160 were playing most of the day, had snacked and lunch. 0:06:57.240 --> 0:07:00.279 It was me and Nancy that day that afternoon, like 0:07:00.360 --> 0:07:04.760 after nap, So just went to see my sister, my nephew. 0:07:05.480 --> 0:07:09.960 Significantly, Melissa leaves the room and it's probably gone for 0:07:10.080 --> 0:07:14.800 twenty minutes. The teacher's aide, Nancy Kallinger, who was in 0:07:14.840 --> 0:07:17.960 the room before Melissa came back, she said that he'd 0:07:18.040 --> 0:07:21.120 thrown himself back very forcefully and hit his head on 0:07:21.160 --> 0:07:24.200 the floor before Melissa came back in the room. When 0:07:24.280 --> 0:07:28.800 she returns, Ben is in his bouncy chair, and she 0:07:29.040 --> 0:07:33.840 notices that he's not responding to his name, and then 0:07:34.040 --> 0:07:37.120 just a minute or so later, she notices kind of 0:07:37.120 --> 0:07:39.680 an orange colored foam coming out of his nose and 0:07:39.720 --> 0:07:40.239 his mouth. 0:07:40.760 --> 0:07:43.400 Yeah. When I went over to him, he was just 0:07:43.520 --> 0:07:46.640 in his chair. I went to go get help immediately 0:07:46.800 --> 0:07:49.560 when I didn't get a respond, so I picked my 0:07:49.640 --> 0:07:53.000 head out, left the door open, of course, and my 0:07:53.080 --> 0:07:53.920 sister came running. 0:07:54.280 --> 0:07:58.840 Her sister comes in another aid. They render CPR. So 0:07:59.000 --> 0:08:02.320 Melissa is only back in that room for a couple 0:08:02.360 --> 0:08:08.040 of minutes, and even the state pathologists testified well by 0:08:08.080 --> 0:08:11.400 the time he was unresponsive, this injury had to have 0:08:11.440 --> 0:08:14.600 occurred thirty minutes before or all the way up to 0:08:14.760 --> 0:08:18.920 three hours. He could not go from being alert and 0:08:19.080 --> 0:08:23.840 responsive to this almost comatose condition in the amount of 0:08:23.880 --> 0:08:26.760 time that Melissa was in the room, so then nine 0:08:26.800 --> 0:08:27.720 to one one is called. 0:08:28.080 --> 0:08:30.560 Of course, we now know that a child can experience 0:08:30.600 --> 0:08:34.360 potentially up to seventy two hours of lucidity after a 0:08:34.440 --> 0:08:38.320 traumatic event before succumbing to the symptoms that can arise 0:08:38.360 --> 0:08:42.360 from head trauma, for example intracranial and retinal bleeding as 0:08:42.400 --> 0:08:44.720 well as brain swelling. And who knows what was going 0:08:44.760 --> 0:08:47.400 on during the three days leading up to his tragic passing, 0:08:47.760 --> 0:08:50.200 But if there was another injury in addition to the 0:08:50.200 --> 0:08:53.199 one reported by Nancy Kalinger, it could have been as 0:08:53.240 --> 0:08:57.280 innocuous as a short fall that could have caused a 0:08:57.320 --> 0:09:00.720 rebleed of his previous head injury, and a slow, invisible 0:09:00.760 --> 0:09:02.560 creep towards unconsciousness. 0:09:02.800 --> 0:09:03.960 It was just chaos. 0:09:04.160 --> 0:09:06.560 We took the kids next door back into the infant 0:09:06.600 --> 0:09:09.640 room so the paramedics can do what they do, and 0:09:09.679 --> 0:09:12.760 I was just following because it's like what happened. 0:09:13.440 --> 0:09:17.800 He never regains consciousness. They take him in and he's 0:09:18.000 --> 0:09:21.760 pronounced dead, and then an autopsies performed by doctor Choi. 0:09:22.120 --> 0:09:25.520 There were two autopsies, right, which is unusual. 0:09:25.200 --> 0:09:29.120 Yes, very In fact, the cases I've had where there's 0:09:29.200 --> 0:09:33.400 actually not a murder, there's always two autopsies. So there's 0:09:33.520 --> 0:09:37.280 the first one where the pathologist decides, well, the case 0:09:37.360 --> 0:09:41.640 of death doesn't clear, it's undetermined. Then there's police pressure, 0:09:42.160 --> 0:09:45.120 and then the second one. Suddenly there's a homicide. And 0:09:44.880 --> 0:09:48.280 that's what happened in this case. Choi was pressured. 0:09:48.679 --> 0:09:50.880 Yeah, it's like we didn't like the first conclusion, go 0:09:50.960 --> 0:09:54.400 get us a different one. While doctor Choi was instructed 0:09:54.440 --> 0:09:57.400 to do a second autopsy, detectives return to the Mini 0:09:57.480 --> 0:09:59.560 Subie daycare to find Melissa. 0:10:00.160 --> 0:10:00.880 I barely got. 0:10:00.800 --> 0:10:03.400 Any sleep, but the next morning I went to work. 0:10:03.559 --> 0:10:07.480 They were all there, and the way they took me out, 0:10:07.880 --> 0:10:12.720 I had each detective basically standing side by side, super 0:10:12.760 --> 0:10:15.120 close to me, and then I had one behind me, 0:10:15.800 --> 0:10:20.440 and I remember Detective Hide telling me we need to 0:10:20.480 --> 0:10:22.920 ask you some more things and we need you to 0:10:22.920 --> 0:10:25.400 come with us. But I didn't feel like I had 0:10:25.440 --> 0:10:28.720 a choice when they were surrounding me. 0:10:28.720 --> 0:10:31.960 Melissa was eventually taken to Lincolnshire PD, where she endured 0:10:32.000 --> 0:10:35.600 fourteen hours of interrogation without her parents or an attorney. 0:10:35.640 --> 0:10:38.400 But importantly, there were other factors at play that made 0:10:38.400 --> 0:10:40.520 Melissa more vulnerable to police pressure. 0:10:41.040 --> 0:10:44.160 They got sexually assaulted back in two thousand and six, and. 0:10:44.240 --> 0:10:48.960 She had a cute post traumatic stress. Her head was 0:10:49.000 --> 0:10:53.600 covered with a blanket, so she was like super clausterphobic 0:10:54.240 --> 0:11:00.120 and had PTSD. That condition was so bad that it 0:11:00.240 --> 0:11:04.400 showed up years later when I just had doctor Westfall 0:11:04.520 --> 0:11:11.080 from Yale forensic psychiatrist do a workup of Melissa, and 0:11:11.200 --> 0:11:16.640 they reported back to me that she had unresolved PTSD. 0:11:16.880 --> 0:11:20.280 They were tracing back to the sexual assault. Well, she 0:11:20.520 --> 0:11:25.160 had reported it and the perpetrator had some connection to 0:11:25.240 --> 0:11:29.080 the police department, and there were no charges brought against him. 0:11:29.400 --> 0:11:33.280 In addition, subsequent IQ and verbal testing suggests that Melissa's 0:11:33.280 --> 0:11:37.520 mental acuity also made her more susceptible to pressure from authority. Figures. 0:11:38.080 --> 0:11:41.400 Yeah, she's trapped in the room with these two officers 0:11:41.400 --> 0:11:45.520 who are incredibly aggressive with her. They got her wedged 0:11:45.559 --> 0:11:49.439 into this corner. And the thing I think that's most 0:11:49.880 --> 0:11:52.920 striking to me in her interrogation that goes on for 0:11:53.040 --> 0:11:58.120 hours is how many times she denies having done anything. 0:11:58.960 --> 0:12:01.960 Nine at least that we've counted, right, seventy nine times 0:12:02.040 --> 0:12:03.320 she says, no, I didn't do it. 0:12:03.480 --> 0:12:06.520 I know I didn't do anything wrong. And it's just 0:12:06.559 --> 0:12:10.760 so crazy because they keep pressing and pressing. They'll put 0:12:10.800 --> 0:12:13.400 you in a little room and mat press and pressed 0:12:13.440 --> 0:12:17.240 like the world is crushing you, and you can't get 0:12:17.240 --> 0:12:19.880 out of it until you tell them what they want 0:12:19.880 --> 0:12:22.959 to hear, because for people like me, there is no 0:12:23.320 --> 0:12:25.640 right answer. They want their answer. 0:12:34.040 --> 0:12:36.840 You're listening to Wrongful Conviction. You can listen to this 0:12:36.960 --> 0:12:39.640 and all the Lava for Good podcasts one week early 0:12:39.760 --> 0:12:43.080 and ad free by subscribing to Lava for Good Plus 0:12:43.360 --> 0:12:44.480 on Apple Podcasts. 0:12:50.960 --> 0:12:57.040 During Melissa's interrogation, Joy is performing the second autopsy and 0:12:57.120 --> 0:13:01.200 so the officers keep leaving the end interrogation to go 0:13:01.240 --> 0:13:04.920 and talk to him, and that there's other officers present 0:13:05.000 --> 0:13:08.320 at the autopsy, which they should actually never do that 0:13:08.840 --> 0:13:12.160 because then the pathologist feels extremely pressured. 0:13:12.440 --> 0:13:16.240 There were no cuts or obvious wounds or serious bruising, 0:13:16.320 --> 0:13:20.000 but after the second autopsy, doctor Troy ruled Bend's death 0:13:20.040 --> 0:13:24.439 a homicide. He said that there was intracranial bleeding followed 0:13:24.440 --> 0:13:26.840 by something that appears to not have been supported by 0:13:26.840 --> 0:13:29.320 the X rays, that Ben had a skull fracture from 0:13:29.400 --> 0:13:30.520 blood for's ed trauma. 0:13:30.840 --> 0:13:33.880 There's not a fracture that showed up on the clear 0:13:34.200 --> 0:13:39.640 X rays, and there was bleeding. Doctor Troy, he can't 0:13:39.679 --> 0:13:42.160 see that fracture on the X ray, but he thinks 0:13:42.160 --> 0:13:45.360 he can see it visually. The whole history of the 0:13:45.400 --> 0:13:51.880 prior injury that caused this potential for massive bleeding existed 0:13:52.000 --> 0:13:56.080 in October and was undetected, and then he misses it 0:13:56.120 --> 0:13:59.959 at autopsy and then gets fixated on what he thought 0:14:00.080 --> 0:14:02.680 it was a skull fracture and that there had to 0:14:02.679 --> 0:14:07.920 be this tremendous blow to Ben's head. Well, subsequent pathologist 0:14:08.000 --> 0:14:12.000 have said no, no, that's an accessory suture. That's not 0:14:12.120 --> 0:14:15.840 a skull fracture. There wasn't any tremendous blow to his 0:14:15.960 --> 0:14:17.160 head accessories. 0:14:17.160 --> 0:14:21.720 Skull sutures are developmental anomalies which typically occur while the 0:14:21.760 --> 0:14:24.800 soft spots of a young child's skull solidified during the 0:14:24.800 --> 0:14:28.200 first twenty four months. So while X rays are typically 0:14:28.200 --> 0:14:31.600 a better assessment of fractures or sutures than the naked eye, 0:14:31.680 --> 0:14:35.480 doctor Choi chose or was pressured to trust his naked 0:14:35.520 --> 0:14:40.280 eye instead to assess the source of the intracranial bleeding. 0:14:40.880 --> 0:14:45.080 There was fresh blood that it comes from the old injury. 0:14:45.400 --> 0:14:48.680 It's very similar to the football player that has the concussion, 0:14:48.880 --> 0:14:51.280 then goes back in and is playing and has a 0:14:51.320 --> 0:14:55.160 slight head tap and suddenly he's dead. You've got an 0:14:55.200 --> 0:14:59.480 aggravation of the underlying layers of the brain. In this case, 0:14:59.520 --> 0:15:04.800 there was barachnoid subgalile bleeding, but it still wasn't massive bleeding, 0:15:04.840 --> 0:15:08.320 and there was also old blood. So that's why doctor 0:15:08.440 --> 0:15:12.040 Choi in the first autopsy, it wasn't clear at all 0:15:12.400 --> 0:15:14.200 that this was a homicide. 0:15:14.360 --> 0:15:17.120 There was no reason that a competent person in his 0:15:17.240 --> 0:15:21.160 position could have or should have made these mistakes or again, 0:15:21.240 --> 0:15:24.080 maybe they weren't mistakes. Maybe he was just cow tewing 0:15:24.160 --> 0:15:26.320 to the men in blue that were in the room 0:15:26.360 --> 0:15:29.640 with him, which, again, that's outrageous. It's fucking outrageous that 0:15:29.680 --> 0:15:33.080 they're allowed to like bird dog this situation. Years later, 0:15:33.200 --> 0:15:35.920 doctor Joy admitted that he missed the previous injury during 0:15:35.920 --> 0:15:39.520 the autopsy, which should observed as a compelling explanation for 0:15:39.560 --> 0:15:43.160 the bleeding, especially in the absence of any exterior injuries. 0:15:43.480 --> 0:15:47.080 But the result of this faulty forensic exam was then 0:15:47.160 --> 0:15:48.960 brought into the interrogation room. 0:15:49.560 --> 0:15:53.360 So it's the classic read technique where you start out 0:15:53.400 --> 0:15:56.080 she's denying, denying, denine. Then you tell her none of 0:15:56.080 --> 0:15:59.400 that's true. You've just talked to the pathologists. He had 0:15:59.440 --> 0:16:02.840 this horror head injury equivalent to being thrown off a 0:16:02.920 --> 0:16:05.720 three story building. She was the one in the room 0:16:05.760 --> 0:16:08.880 with him when he became unresponsive. It has to be her, 0:16:09.240 --> 0:16:11.040 and they just keep pounding on her. 0:16:11.360 --> 0:16:13.640 They were just like, let's just cut the bs, let's 0:16:13.640 --> 0:16:15.840 cut to it. All of us are exhausters. Why don't 0:16:15.880 --> 0:16:17.880 you just tell us so we can all go home. 0:16:18.320 --> 0:16:20.600 I'm just wanted to get home, tell my parents what happened. 0:16:20.960 --> 0:16:25.000 And go from there and like, Okay, they want to 0:16:25.040 --> 0:16:27.440 hear what they want to hear, forget what I'm saying. 0:16:27.640 --> 0:16:31.080 So that's why I said what I said. Everything they 0:16:31.240 --> 0:16:33.000 said I said. 0:16:33.720 --> 0:16:36.960 I would say eighty five percent of the interrogation is 0:16:36.960 --> 0:16:41.320 them talking. They believe that she just snapped and threw 0:16:41.400 --> 0:16:46.320 him down. They tell her exactly what to say. Did 0:16:46.400 --> 0:16:50.080 they show her what to do? Like here, take this, 0:16:50.240 --> 0:16:52.880 they gave her some little teddy bear. Throw that down 0:16:52.880 --> 0:16:55.600 on the floor really hard. He's facing out and she 0:16:55.720 --> 0:16:58.000 throws him on the floor. The problem is the injuries 0:16:58.040 --> 0:17:00.400 in the back of the head. But once got it, 0:17:00.480 --> 0:17:03.800 they ran with it and they're couching it in. If 0:17:03.800 --> 0:17:07.439 you haven't done anything really wrong, you'll get to go home. 0:17:07.760 --> 0:17:11.880 I mean, she actually leaves the interrogation and says, I've 0:17:11.880 --> 0:17:14.280 got to get home to my puppy and I'm going 0:17:14.359 --> 0:17:15.600 to warm the car up. 0:17:16.080 --> 0:17:18.479 I literally thought I was going home to see my puppy. 0:17:18.600 --> 0:17:21.520 I had my keys with the prestarter, I had my 0:17:21.560 --> 0:17:24.760 phone in my hand. I was literally thought I was 0:17:24.800 --> 0:17:27.199 going home to see my family and my dog. But 0:17:27.760 --> 0:17:30.119 it was crazy when they took everything out of my hand. 0:17:31.000 --> 0:17:34.080 Neither the false confession nor the atops who lined up 0:17:34.119 --> 0:17:37.840 with reality. Yet Melissa has not seen the outside since 0:17:37.920 --> 0:17:40.640 January fifteenth of two thousand and nine. 0:17:40.800 --> 0:17:44.840 After everything had happened. I do remember being in the 0:17:44.840 --> 0:17:47.080 back of a police card and saying I'm innocent. I 0:17:47.119 --> 0:17:50.000 did not do this, and I kept calling them and 0:17:50.040 --> 0:17:53.320 I kept telling them there is a big mistake, and 0:17:53.840 --> 0:17:58.040 they were not listening to me. At hall, I felt 0:17:58.080 --> 0:18:02.840 like this tiny little mouth because it's like I'm telling everybody, 0:18:02.920 --> 0:18:04.960 like there's a big mistake. I did not do this, 0:18:05.359 --> 0:18:09.640 And it was like a nightmare. There is a big mistake. 0:18:10.119 --> 0:18:12.800 She immediately we can't at her story, but it doesn't matter. 0:18:12.840 --> 0:18:15.400 You can't put that genie back in the bottle. So 0:18:16.000 --> 0:18:17.920 was she able to bond out or was she stuck 0:18:17.960 --> 0:18:20.800 in jail awaiting a trial that was two years away. 0:18:21.040 --> 0:18:23.600 She never bonded out. She was stuck in jail and 0:18:24.080 --> 0:18:27.360 the parents had come to me to do the trial. 0:18:27.600 --> 0:18:31.600 But I was in the middle of Kevin Fox's appeal 0:18:31.800 --> 0:18:36.360 from his civil rights verdict, and so I recommended a 0:18:36.480 --> 0:18:40.680 very accomplished criminal defense attorney. Paul de Luca, who had 0:18:40.720 --> 0:18:43.720 been a prosecutor in Cook County, has been a defense 0:18:43.760 --> 0:18:47.120 attorney for years, has done dozens of death penalty cases 0:18:47.160 --> 0:18:49.320 and all of that. And then he brought in another 0:18:49.400 --> 0:18:54.080 attorney who was equally experienced, and they became the trial attorneys. 0:18:54.520 --> 0:18:58.560 So Paul de Luca tried to get the confession tossed out, 0:18:59.000 --> 0:19:02.280 and he brought in Richard Leo, and they did my 0:19:02.480 --> 0:19:06.360 Q testing, verbal testing, and they did all the right things, 0:19:06.400 --> 0:19:09.879 and the judge would not let any of that evidence in. 0:19:10.520 --> 0:19:13.480 Remember this was in twenty eleven. He said that at 0:19:13.520 --> 0:19:16.240 that point the case law was not strong enough to 0:19:16.520 --> 0:19:21.000 justify letting in a false confession expert. So all that 0:19:21.080 --> 0:19:24.880 workup was done her IQ. The problem with the verbal testing. 0:19:25.440 --> 0:19:28.560 The one thing though that they knew about but they 0:19:28.600 --> 0:19:32.680 didn't pursue. And Paul's a totally honest person. He's given 0:19:32.720 --> 0:19:36.080 me an affidavit to this effect, was the sexual assault 0:19:36.200 --> 0:19:40.840 and unresolved PTSD. Well, Paul de Luca knew that, but 0:19:40.920 --> 0:19:44.399 you know, he was focused on Richard Leo and trying 0:19:44.400 --> 0:19:46.720 to get all of that in. But they should have 0:19:46.800 --> 0:19:50.760 done that. They simply did not know that that, combined 0:19:50.920 --> 0:19:56.240 with her language impairments, was just fatal to her that day, 0:19:56.280 --> 0:19:59.640 being in that room, in that corner with these people. 0:20:00.160 --> 0:20:04.040 So, despite the science of false confessions as well as 0:20:04.040 --> 0:20:08.160 how susceptible Melissa was to police pressure, her false statement 0:20:08.800 --> 0:20:13.480 was admitted and the defense rebuttal evidence and the expert himself, 0:20:13.600 --> 0:20:18.680 Richard Leo, were denied. Additionally, before her November twenty eleven trial, 0:20:18.720 --> 0:20:21.399 Melissa's defense was provided with a digital image of Ben's 0:20:21.440 --> 0:20:24.040 skull X ray. But you know how a file could 0:20:24.080 --> 0:20:26.000 be saved in a different format which can affect the 0:20:26.080 --> 0:20:29.919 quality of the content. Well, this image was so compressed 0:20:30.480 --> 0:20:34.199 that it simply wasn't legible, leaving the defense experts at 0:20:34.240 --> 0:20:38.639 a big disadvantage. Doctor Shaku Tease testified about both the 0:20:38.800 --> 0:20:42.400 unreadable images as well as doctor Troy's shoddy work. 0:20:42.720 --> 0:20:46.359 Doctor Troy didn't take samples of the skull fracture, They 0:20:46.359 --> 0:20:49.320 didn't do the slides that he should have done, So 0:20:49.440 --> 0:20:52.840 doctor Tease, she was saying there was no definite proof 0:20:52.920 --> 0:20:57.080 of the fracture and the X rays were totally unreadable, 0:20:57.600 --> 0:21:00.560 and she thought it could have been a suture. Ben 0:21:00.680 --> 0:21:04.120 was only sixteen months old, so his skull was still 0:21:04.320 --> 0:21:06.920 in that formative you know, where you have the little 0:21:06.960 --> 0:21:10.720 soft spot and the skull is more vulnerable, and so anyway, 0:21:10.800 --> 0:21:13.800 te said this could be an accessory suture that's part 0:21:13.880 --> 0:21:17.080 of the final skull formation, and that Troy had just 0:21:17.160 --> 0:21:20.640 mistaken it for a fracture. Then Paul di Luca brought 0:21:20.680 --> 0:21:25.760 in doctor Leedsma, who's a renowned pediatric physician in Chicago, 0:21:26.000 --> 0:21:28.680 and he tried to convince the jury this was a 0:21:28.720 --> 0:21:31.240 rebleed of the prior injury. 0:21:31.720 --> 0:21:35.200 The defense also called the other teacher's aide, Nancy Kalinger. 0:21:35.840 --> 0:21:39.560 She claimed that she'd taken him to the changing table 0:21:39.640 --> 0:21:41.760 and he didn't need his diaper change, and that she 0:21:41.920 --> 0:21:45.000 set him down on the floor, and she claimed that 0:21:45.119 --> 0:21:48.240 he and Melissa's not in the room, that he threw 0:21:48.359 --> 0:21:51.040 himself back really forcefully. 0:21:50.800 --> 0:21:55.280 Which directly supports the rebleed theory. Then the state presented 0:21:55.320 --> 0:21:58.919 an alleged forensic pathologist named Manny Montez, who said that 0:21:59.080 --> 0:22:01.920 he had felt the fracture with his own hands, which, 0:22:01.920 --> 0:22:05.879 according to the recently resurfaced raw digital images of Ben's skull, 0:22:06.200 --> 0:22:08.600 appears to have been a total fabrication. 0:22:09.280 --> 0:22:13.760 Totalized Yes, So what happened was the state sprung doctor 0:22:13.920 --> 0:22:18.000 Montes on the defense in rebuttal and it was very 0:22:18.080 --> 0:22:21.840 unfortunate they didn't have a counter to Montes, but he 0:22:21.920 --> 0:22:26.800 gave this Academy Award performance and his credentials. He was 0:22:26.880 --> 0:22:31.160 never board certified. But he's the guy that comes in 0:22:31.200 --> 0:22:34.640 and he's felt the skull and he's manipulated it and 0:22:34.800 --> 0:22:36.800 tells the jury, oh my god, there's this through and 0:22:36.840 --> 0:22:40.280 through fracture. That was a tremendous blow. So that's the 0:22:40.359 --> 0:22:41.679 last thing the jury hears. 0:22:42.160 --> 0:22:45.840 Prosecutors mentioned the skull fracture more than thirty times, so 0:22:45.920 --> 0:22:48.720 they knew they had something that couldn't be beat. Right. 0:22:48.800 --> 0:22:50.560 They probably had a meeting in the back room somewhere 0:22:50.560 --> 0:22:53.439 and said, hey, just keep go after skull practice, skull fractors. 0:22:53.520 --> 0:22:56.480 Keep hitting that point right, and you could probably they 0:22:56.480 --> 0:22:58.480 could probably see the reaction in real time that the 0:22:58.560 --> 0:23:01.800 jurors just probably wanted to throw up thinking about this 0:23:01.920 --> 0:23:04.440 terribly violent act. So at the end of the day, 0:23:04.480 --> 0:23:08.199 you've got lay people on the jury. There's competing medical experts. 0:23:08.640 --> 0:23:10.639 It's almost like a toss up, and if it's a 0:23:10.680 --> 0:23:13.880 toss up, they're going to default to. Well, it's easier 0:23:14.240 --> 0:23:17.880 to reconcile the idea that something horrible was done by 0:23:17.880 --> 0:23:20.720 a bad person as opposed to the idea that a 0:23:20.760 --> 0:23:23.840 baby could have just died, because if that's true, then 0:23:23.920 --> 0:23:25.360 your baby could just die. 0:23:25.480 --> 0:23:28.359 I've done a lot of medical malpractice with parents who've 0:23:28.400 --> 0:23:31.720 lost a child. I think when parents lose a child, 0:23:31.800 --> 0:23:35.560 they tend to blame themselves. I think the mother who 0:23:35.600 --> 0:23:39.800 may well have had a malpractice suit against the pediatrician 0:23:39.840 --> 0:23:44.040 who didn't do the CT scan, in her mind, probably 0:23:44.080 --> 0:23:49.040 blamed herself to some extent, although it was the pediatrician's fault. 0:23:49.320 --> 0:23:53.080 So as you're saying, one thing that alleviates some of 0:23:53.160 --> 0:23:57.560 that guilt is to have a clear bad guy, a 0:23:57.600 --> 0:24:00.399 person you can blame this on, like this didn't have 0:24:00.440 --> 0:24:03.400 anything to do with October. This had to do with 0:24:03.440 --> 0:24:06.040 this young woman and her vile temper. 0:24:07.080 --> 0:24:11.200 It was just heartbreaking with me, and then how these 0:24:11.240 --> 0:24:14.600