Coroner changes day care death from ‘homicide’ to ‘undetermined’

The Lake County coroner, citing new medical evidence, has changed the cause of death of a 16-month-old Deerfield toddler — whose day care provider was convicted of killing him — from homicide to “undetermined.”

Prosecutors have argued that the toddler, Benjamin Kingan, died of a skull fracture that happened when Melissa Calusinski, now 28, threw him to the ground in anger in January 2009, at a Lincolnshire day care center.

Lake County Coroner Thomas Rudd, however, now says new medical evidence proves that a pre-existing injury and chronic, self-inflicted, head-banging caused the boy’s death.

“Their evidence for a skull fracture has totally been disproven,” Rudd said. “They used this erroneous evidence to convict this person of murder.”

Numerous witnesses, including Benjamin’s parents, testified at trial about Benjamin’s habit of throwing himself back and hitting his head during tantrums.

“They have to release her now,” said Paul Calusinski, Melissa’s father. “The evidence was always there, they just didn’t want us to know.”

“We are very proud of our daughter,” Calusinski said. “She stood up for herself and she maintained her innocence. Now the truth should finally set her free.”

A motion requesting a judge to order a new trial for Calusinski or overturn her conviction is pending in Lake County. Lake County State’s Attorney Michael Nerheim has opposed her release and said Wednesday his office is reviewing the evidence cited by Rudd but offered no comment on the coroner changing the cause of death.

“We are currently reviewing these documents to determine whether this material had previously been given to the defense, whether this in fact is new material and whether these images have any added significance to what was previously presented at this defendant’s murder trial. This is a pending case before a Lake County judge. The legal arguments in this case will be decided in a court of law, not by press release,” Nerheim said in a statement.

Shortly after Rudd took office in January 2013, he began to review and reanalyze the case. According to the original autopsy, performed by forensic pathologist Eupil Choi, Benjamin had a skull fracture on the right side of his head with an acute bleed, which happened within minutes of his death.

Rudd argues that Choi’s finding of a skull fracture made no sense scientifically because there was no bleeding identified under the skin or in the skull bone, corresponding to the area of the alleged skull fracture.

The alleged skull fracture could have been, in fact, an area of the skull that expands as the brain grows in a child, called an accessory suture, since a similar defect was present in the left skull, Rudd said. However, no tissue from the skull defect was submitted microscopic analysis, which would have confirmed the nature of the defect, he said.

“That is a grave error in the field of pathology,” he said. “All [Choi] has is theory; he doesn’t have fact.”

In August 2013, Choi said in an affidavit that the boy “had suffered an old injury that predated January 14, 2009,” the date of the boy’s death, which he had “missed.”

Kathleen Zellner, Calusinski’s attorney, filed a motion late last month asking Judge Daniel Shanes to overturn the conviction or order a new trial. Shanes has 90 days to rule.

Despite recent developments in the case, “I still can’t get a meeting with the county prosecutor,” Zellner said.

“You have a pathologist who admitted he told the jury incorrect information about the cause of death,” she added. “(Prosecutors) continue to say that the medical findings don’t matter, but I invite anyone to take a look at the case law . . . I think this conviction is going to be vacated.”

Calusinski confessed to intentionally slamming the boy’s head to the ground out of frustration. Her confession came during an interrogation that lasted more than nine hours. She denied having anything to do with Benjamin’s death at least 79 times, for more than six hours. Her attorneys have said Calusinski eventually confessed, in part because of her low IQ and her belief that she would be allowed to go home.

In April 2013, Rudd asked staff forensic pathologist, Nancy Jones, to analyze the original autopsy. Jones discovered “major errors,” including “the fact that the original injury to the head was not an acute injury but instead a severe chronic injury,” according to Rudd.

On June 10, 2015, a set of X-rays, which were allegedly never turned over to defense attorneys before or during Calusinski’s trial, were discovered at the coroner’s office. That discovery came after an anonymous call to Calusinski’s father telling him to have his attorneys get the second set of x-rays. They include a skull x-ray that reveals Benjamin’s head was not shaped normally, Rudd said.

“In fact, it had the shape of an old fashioned light bulb (round), which is abnormal for a child of this age,” he said. “His head circumference was at the 95th percentile at the time of his death. This indicates significant abnormality within the head.”

Most striking of all is that there was no skull fracture, said Rudd, who added that this had been confirmed by Jones, an outside consultant radiologist and himself.

Rudd said that Benjamin suffered a blow to his head approximately six weeks prior to his death – a fact that daycare workers brought to the attention of the boy’s parents and was part of the defense’s argument at trial.