A Lake County judge is expected to decide in September if a new trial request for a Carpentersville woman now in prison for the murder of a toddler at a day care center has merit or should be thrown out of court.
Attorneys for Melissa Calusinski, 28, who is serving a 31-year sentence for killing 16-month-old Benjamin Kingan at the now-closed Minee Subee in the Park in Lincolnshire, filed the motion seeking a new trial June 23.
Judge Daniel Shanes has 90 days from the day the petition was filed to determine if it has merit and should continue for hearing. Shanes can also deny the petition and throw it out of court.
On Monday, Shanes set a Sept. 21 date to decide if the petition should go to the second stage of the process, or if it does not meet the criteria for a second trial.
A jury convicted Calusinski in 2011 after prosecutors argued she threw the Deerfield boy to the floor and caused his fatal injuries.
In her petition, attorney Kathleen Zellner argues a new trial is warranted because of the discovery of a set of legible autopsy X-rays taken of Benjamin's skull that clearly showed the toddler was suffering from a pre-existing injury when he died.
After the legible X-rays were discovered, forensic pathologist Nancy Jones reviewed the X-rays and 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.
Jones stated in the court document 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.
Prosecutors are not allowed to argue the case at this phase of the process, officials said. Instead, Shanes will determine if there is a valid argument to move forward. If he allows the petition to move into the second stage, prosecutors will then be allowed to respond to the petition.