On her mother’s 61st birthday, Melissa Calusinski and her family learned that the state appellate court rejected her bid for a new trial.
Calusinski, now 31, of Carpentersville, was one of the caregivers of 16-month-old Benjamin Kingan, of Deerfield, at the now-shuttered Minee Subee Daycare, in Lincolnshire. In 2011, Calusinski was convicted of first-degree murder and sentenced to 31 years in prison for the boy’s death. Her case has drawn national attention, in part, for the many questions that surround her prosecution.
In April, an attorney for Calusinski argued before the appellate court her client should get a new trial because prosecutors withheld important evidence during the trial.
“Happy f—— birthday,” said Calusinski’s father, Paul Calusinski, referring to his wife, Cheryl. “How could this be? The evidence is right there.”
At the April hearing, Calusinski’s attorney, Kathleen Zellner, argued that a new set of legible X-rays, which show that the toddler had a pre-existing injury, were not turned over at trial.
At a pretrial hearing in 2011, lead prosecutor Christen Bishop told Judge Daniel Shanes that the X-rays they turned over to the court and to the defense were “not readable or legible.”
However, the appellate court justices found that Calusinski’s trial attorney, Paul DeLuca, was provided software, which would have allowed him to view the X-rays, and the court ruled that he could view anything in the coroner’s files.
Prosecutors have argued that the toddler died of a skull fracture, which happened when Calusinski threw him to the ground in anger. However, her defense argued that the legible X-rays would have proven that Benjamin did not suffer from a skull fracture, as the prosecution said at trial 93 times.
Zellner has argued that the new X-rays show that Benjamin died from a subdural hematoma, which happened from a bump on the head months before his death.
The prosecution, though, has argued that even if Benjamin had a subdural hematoma, Calusinski caused his death in a final blow when she threw him to the ground. The proof of that comes from a confession Calusinski gave after nine hours of interrogation, they have said. The defense has said the confession was coerced and is false.
In their findings, the appellate court judges ruled that they did not think that Calusinski’s confession was coerced. They also indicated the defense did not argue Calusinski’s innocence but rather the court’s errors.
The Calusinski family is down because of this news but not defeated, Paul Calusinski said.
“We are taking this to the Illinois Supreme Court,” he said.
Zellner said in a statement: “We are disappointed about the appellate court opinion but in the world of post-convictions most cases with a confession take an average of 15 years to overturn if they are overturned. We have found several significant factual errors in the opinion. . . . We strongly maintain our position that Melissa did not receive a fair trial.”
Prosecutors had no comment.