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Ruling possible this week on new murder trial for day care worker

Melissa Calusinski, incarcerated since 2009 for murdering a toddler, will not get a new trial, an appellate court has ruled. | Sun-Times file photo

When a day care worker was accused in the 2009 death of a Deerfield toddler, X-rays of the toddler’s skull were provided to defense attorneys — but those X-rays were made illegible on purpose, a computer expert testified last week.

At a hearing seeking a new trial for Melissa Calusinski, who is serving a 31-year sentence for the death of Benjamin Kingan, her attorneys argued Friday that she will be exonerated by newly discovered medical evidence. Calusinski, now 29, was sentenced in 2011 for first-degree murder. She attended Friday’s hearing, wearing a navy-blue prison jumpsuit.

Among the new evidence is legible X-Rays of Benjamin’s skull that were discovered by Lake County Coroner Thomas Rudd in June 2015. Calusinski’s attorneys say they prove that the 16-month-old did not suffer a skull fracture, as the prosecution told the jury — 32 times — at Calusinski’s trial.

On Friday, defense attorney Kathleen Zellner called Jeff Mueller, a software developer and imaging expert who testified that the images provided to the defense could not be enhanced or improved and were purposely compressed so they could not be viewed.

“Is it your opinion that modifications were made on another computer?” asked Zellner.

“That is what I can find,” said Mueller.

At the end of Friday’s proceedings, Judge Daniel Shanes said he will look over the evidence and he hopes to make a ruling by the end of this week.

One prosecution witness, Dean Kharasch, an investigator for the Lake County State’s Attorney’s Office, criticized Mueller’s approach and methodology. Kharash, who works in the cyber crimes division, said he went to the Lake County Coroner’s Office to observe Mueller conduct what he thought would be a forensic examination of the coroner’s computer. However, Kharasch said, “there was nothing forensic about it.”

Melissa Calusinski's father Paul Calusinski attended last week's hearing. | Ruth Fuller/For the Sun-Times

Melissa Calusinski’s father Paul Calusinski attended last week’s hearing. | Ruth Fuller/For the Sun-Times

Zellner in turn questioned Kharasch’s expertise to make that assessment. Kharasch said he attended various computer training sessions and earned several certifications, but did not have a degree in that area.

So what is your degree in? Zellner asked.

Music and theater, Kharasch said.

At a pre-trial hearing in 2011, lead prosecutor Christen Bishop, who is now a Lake County judge, told Shanes that the three X-Rays taken of the boy were “not readable or legible.”

During a nine-hour interrogation, Calusinski had confessed to intentionally slamming the boy’s head to the ground, though she initially had denied — at least 79 times, over six hours — having anything to do with Benjamin’s death.

Friday was the final day of the three-day hearing; the first two days were held in August.

In August, former Lake County Senior Deputy Coroner Paul Forman testified that during the autopsy, he took X-rays of Benjamin’s skull and put them up for forensic pathologist Eupil Choi to view; Forman described those X-rays as “clear and readable.”

Zellner asked Forman about testimony during the trial by forensic pathologist Manny Montez, who claimed to have to examined Benjamin’s body at the request of then-Coroner Richard Keller the day after the autopsy. Forman said that Montez did not view the body at all, but rather just took a folder with him of the autopsy notes and photos.

At the trial, Montez said that what he found was “significant trauma, violent trauma to the head,” adding that he then “went to where the organs were kept after the autopsy,” and “looked at the brain itself.”

At Friday’s hearing, a witness for the prosecution testified that the brain had been dissected by Choi at the autopsy on Jan. 15, 2009, the day prior to the the day Montez claimed to have viewed the brain.

Montez was not called to testify; contacted by the Sun-Times Friday, Montez declined to comment.

Benjamin Kingan was 16 months old when he died in January 2009. | Sun-Times

Benjamin Kingan was 16 months old when he died in January 2009. | Sun-Times

Lake County Assistant State’s Attorney Steve Scheller argued Friday that the X-rays were not new — and were the same ones tendered to the defense at pre-trial in 2011.

“Those X-rays weren’t important to the defense,” he said. “Whether or not the X-rays showed a fracture was insignificant to the defense.”

Zellner said she couldn’t disagree more.

“In the pre-trial and trial records in this case, the words ‘skull fracture’ were used 93 times,” she said. “We are not claiming that the skull fracture was the cause of death. We are claiming that the skull fracture was mentioned by every doctor called by the state and was mentioned by Ms. Bishop in her opening and closing multiple times. The skull fracture was a critical part of their case.”

Instead, the defense has argued that Benjamin had a pre-existing injury from a bump on the head, but then the final blow came when he threw himself back in a tantrum at the daycare center on the day he died.

Scheller, in his closing argument, criticized that theory.

“The defense theory has always been that this child killed himself — this child committed suicide,” Scheller said. “The human race would cease to exist under the defense theory because every time you hit your head you are going to be dead.”

After the hearing, Zellner said she wasn’t surprised by how fast the judge expected to make his ruling.

“I think the issues are really straightforward,” she said. “Whether it is here, or on appeal, we are going to win this. I have no doubt.”

Melissa Calusinski worked at this Lincolshire daycare center when she was convicted of murder in the death of one of the children there, Benjamin Kingan. | Sun-Times

Melissa Calusinski worked at this Lincolshire daycare center when she was convicted of murder in the death of one of the children there, Benjamin Kingan. | Sun-Times