Attorneys for convicted child killer argue for new trial over disputed evidence

Lawyers for a suburban daycare worker convicted of killing a child want her to get a new trial because prosecutors withheld crucial evidence.

Attorneys for Melissa Calusinski made their case before three appellate justices last week in brief arguments about the 2011 trial that gained national attention.

Calusinski, now 31, of Carpentersville, was one of the caregivers of 16-month-old Benjamin Kingan, at the now-shuttered Minee Subee Daycare, in Lincolnshire. She was convicted of first-degree murder and sentenced to 31 years in the boy’s death. She confessed to killing the boy, but her attorneys and supporters argue she was coerced into making the statement after hours of questioning.

Prosecutors argued that the toddler died of a skull fracture, which they say happened when Calusinski threw him to the ground in anger. However, her defense’s request for a new trial is based on a set of legible X-rays, which they say would have proven that Benjamin did not suffer from a skull fracture, as the prosecution said — 93 times — at trial.

At an unsuccessful request in 2016 for a new trial in the Lake County, Zellner called a pediatric radiologist, who said the X-rays showed it was impossible for Benjamin to have suffered a skull fracture.

Calusinski’s attorneys have argued that they subpoenaed all of Benjamin’s X-rays and the copy that was provided could not be read. They say they later learned of a second set that was clear.

At the hearing Wednesday in Elgin, appellate state’s attorney Mary Beth Burns said prosecutors had turned over all evidence to the defense.

Calusinski’s attorney, Kathleen Zellner, disagreed.

“We have what appears to be a deliberate effort to withhold evidence,” said Zellner. “The jury was told, even in the closing, that the cause of death was a skull fracture.”

What was proven, said Zellner, was that Benjamin died from a subdural hematoma, which happened from a bump on the head, months before his death.

“This was not a fair trial, this was not a fair trial,” Zellner repeated at the end of her argument.

In 2015, the Lake County coroner’s office reclassified the cause of death for the toddler from homicide to undetermined.

Following the hearing, Zellner said she felt “extremely optimistic.”

Calusinski’s father, Paul Calusinski, said his daughter is holding up well in prison.

“I think this will be the last time we will be in court,” he said. “Enough is enough.”