An anonymous call and a second set of legible X-rays is the basis for the new trial request filed on behalf of a Carpentersville woman now in prison for the murder of a toddler at a day care center, court records show.
Attorneys for Melissa Calusinski, 28, who is serving a 31-year prison sentence for killing 16-month-old Benjamin Kingan at the now-closed Minee Subee in the Park in Lincolnshire, filed the motion for a new trial at the Lake County circuit clerk's office in Waukegan about 3:30 p.m. Tuesday.
The document will be sent to Lake County Judge Daniel Shanes for review. Shanes has three months to decide whether to dismiss the motion or if arguments should be heard on the case.
A jury in 2011 convicted Calusinski of murdering Benjamin and sentenced her to prison after prosecutors proved she threw the Deerfield boy to the floor and caused his fatal injuries.
But in the 211-page document filed in circuit court, defense attorney Kathleen Zellner said a new trial is warranted because of the discovery of a second set of legible autopsy X-rays taken of Benjamin's skull that clearly show a pre-existing injury.
The court document states an anonymous caller told Calusinski's father, Paul Calusinski, to find the X-rays at the Lake County coroner's office. Paul Calusinski contacted Lake County Coroner Thomas Rudd, who found the X-rays in the office, the document states.
Defense attorney Paul DeLuca, who represented Calusinski at her trial, is quoted in the court document saying he was given an illegible set of X-rays by prosecutors before the trial but that he had never received the second set of legible X-rays. DeLuca is also quoted in the court document saying he would have used the second set of X-rays at trial if he had them.
After the legible X-rays were discovered, they were sent to forensic pathologist Nancy Jones for review, the document states. Jones determined Benjamin died from a chronic case of cerebral swelling of the brain due to repetitive concussions brought on after the child bumped his own head in October 2008, the document states.
In the court document, officials said Benjamin's head swelled like "an old fashioned light bulb" due to the chronic concussions he suffered, and not an acute injury, as previous pathologists stated.
Jones stated in the court document that the chronic condition was exacerbated through the final months of Benjamin's life by continued "head banging." She added the fatal blow came from Benjamin bumping his head on the floor at the day care center 15 to 20 minutes before he died.
Lake County State's Attorney Michael Nerheim said he was notified through media reports that the post-conviction petition was filed. He said the document is a standard "petition filed by defendants who have been convicted and sentenced for various criminal offenses."
"As I have previously indicated, I am aware of no new evidence in this case that suggests that this defendant was improperly convicted of first-degree murder," Nerheim said. "In the future, should this defendant have any such evidence of actual innocence, I will review that claim as I would in any other case prosecuted by my office."
He added: "In the meantime, a Lake County jury unanimously found this defendant guilty for the first-degree murder of an infant. An Illinois appellate court has affirmed that conviction. While we were not provided a courtesy copy by the defense, we will obtain a copy of the petition, review it, and respond accordingly."
The Illinois appellate court upheld Calusinski's murder conviction in February 2014.