Attorneys for the Carpentersville woman convicted of killing 16-month-old Benjamin Kingan at a former Lincolnshire day care center filed a motion Monday asking for a new trial of the case.
Melissa Calusinski, 25, was found guilty of first-degree murder and aggravated battery to a child on Nov. 16. She faces up to life in prison when she is sentenced sometime next year.
Jurors found she threw the Deerfield toddler to the floor on Jan. 14, 2009 when she became frustrated with boisterous children at the former Minee Subee at the Park day care.
Calusinski, who worked as a teacher's aide at the center that closed shortly after her arrest, claimed Benjamin died when he aggravated an existing head injury by banging his own head on the floor, and that police tricked her into confessing.
In his request for a new trial, defense attorney Paul DeLuca cites what he says were 34 errors made or allowed by judges who presided at hearings of pretrial motions and the two-week trial.
In the motion, DeLuca said Associate Judge Christopher Stride should not have barred the defense from calling Benjamin's mother and his client's sister to testify at a motion to suppress evidence and nullify Calusinski's arrest.
The motion also claims Circuit Judge Daniel Shanes made several errors during the pretrial motions he heard and the trial itself.
Those errors included denying the defense motion to bar Calusinski's two confessions to police and allowing prosecution medical experts wide latitude in their testimony, but limited testimony for similar experts for the defense, according to the motion.
Shanes also should have allowed defense experts on suggestibility and false confessions to testify during the trial, the motion states.
The confessions, according to the motions, were "the product of intensive and unlawful interrogation" and were contradicted by other testimony at the trial.
DeLuca also claims in the motion for a new trial, and a separate motion asking Shanes to throw out the jury's verdict, that his client should have faced a lesser charge in the case.
Shanes instructed the jurors they had the option of considering the crime of involuntary manslaughter in Calusinski's case. DeLuca's motions argue that is the only crime of which she could have legally been convicted.
"Ms. Calusinski stated she was frustrated and lost control when she threw Benjamin to the ground," the motion for a new verdict states. "If Ms. Calusinski is guilty, she is guilty of involuntary manslaughter for acting recklessly in causing Benjamin Kingan's death."
Assistant State's Attorney Christen Bishop declined to comment on the motions Monday, other than to say she will oppose them at a hearing.
The parties are due to appear before Shanes on Jan. 3.