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Judge denies new trial for daycare worker in toddler’s death

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

WAUKEGAN — A Lake County judge on Friday denied a motion seeking a new trial for a daycare worker who is serving a 31-year sentence in the 2009 death of a Deerfield toddler.

Attorneys for Melissa Calusinski had hoped that what they said were newly discovered X-rays would cast doubt on the conviction of their client in the death of Benjamin Kingan.

In a three-day hearing, they had offered testimony that the X-rays provided to defense attorneys at trial — X-rays which purported to show that the toddler had suffered a skull fracture — had been made illegible on purpose.

Judge Daniel Shanes didn’t see things that way, and said there were no “new” X-rays.

“The evidence is clear now that there was never a second set of X-rays,” Shanes said in issuing his ruling Friday morning.

“Without a second set of X-rays, much of the defense’s claim falls apart like a house of cards.”

Calusinski’s attorney, Kathleen Zellner, called the 50-page ruling “riddled with errors.”

Judge Shanes rejected the defense’s “sensational claim” that the new set of X-rays of Benjamin’s head had come to light last year. Shanes said it’s clear from the evidence that those 2015 images are the same ones given to defense attorneys back in September 2011, but in a different file format. And if there are differences in quality between the two sets, defense attorneys were given software in 2011 that would have allowed them to manipulate the images, Shanes said.

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

“The court finds that the images from … June 2015 could not reasonably be taken to put the whole case in such a different light as to undermine confidence in the original trial verdict,” Shanes wrote in his ruling.

Shanes also disputed Calusinksi’s father’s claim that he learned about the second set of X-rays from an anonymous tipster to his cell phone. Shanes said cell phone records don’t support the claim.

“The court appreciates that Mr. Calusinski would likely do or say anything to help his daughter,” Shanes wrote. But, he also noted that if the defense attorney from the original trial were concerned about the quality of the copied X-rays, he could have simply looked at the originals in the coroner’s office.

There had been conflicting evidence about Benjamin’s death presented at trial, but presenting more conflicting evidence now was not enough to order a new trial, Shanes said, noting that the prosecution’s case had not been dependent alone on the existence of a skull fracture.

Benjamin’s parents attended the hearing. They left the courthouse without comment.

Calusinski’s attorney, Kathleen Zellner, said she was not surprised by the ruling.

“I totally expected it,” Zellner said. “We’re in Lake County. They’ve had a whole series of wrongful convictions. They never admit they’re wrong.”

Zellner held a news conference at a nearby hotel after the hearing. She was joined by Calusinski’s father, Paul Calusinski. They, along with about two dozen other supporters, wore black t-shirts with white lettering: “Free Melissa” on the front, “Justice Denied” on the back.

“We will not stop until she gets out,” said Paul Calusinski, who choked up at one point and had difficulty speaking. “She’s doing time for no crime.”

Defense attorneys had said more legible X-rays of Benjamin’s skull were discovered by Lake County Coroner Thomas Rudd in June 2015. Zellner believed they proved that the 16-month-old did not suffer a skull fracture, as the prosecution told the jury — 32 times — at Calusinski’s trial.

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.

Forensic pathologist Manny Montez had, at trial, testified that what he found was “significant trauma, violent trauma to the head.”

Defense attorneys had argued at trial 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.

Contributing: Ruth Fuller