Lake County prosecutors have filed a motion to dismiss a new trial request for a Carpentersville woman who claims she is wrongfully incarcerated for a toddler's 2009 death at a Lincolnshire day care center.
In the 37-page court document filed Dec. 31, prosecutors said the alleged "new" X-ray evidence introduced in a post-conviction petition by defense attorneys for Melissa Calusinski, 28, was actually old evidence her attorneys had in their possession but never electronically enhanced.
In addition, prosecutors said the post-trial petition filed in June by defense attorney Kathleen Zellner reintroduces old arguments that were already discounted at Calusinski's 2011 trial.
"This was a complex trial involving many experts and witnesses, and not something that can be summarized in a sound bite," Lake County State's Attorney Michael Nerheim said Monday. "We filed our petition and will discuss our argument in a court of law where it belongs."
The prosecution document, which the Daily Herald obtained Monday, is under review by Lake County Judge Daniel Shanes. It will be discussed at a hearing Jan. 8.
Calusinski was sentenced to 31 years in prison after a jury convicted her of first-degree murder in the death of 16-month-old Benjamin Kingan. Calusinski was found guilty of throwing the Deerfield boy to the floor at the now-closed Minee Subee in the Park day care in Lincolnshire, causing a fatal head injury.
After an appeal was denied by the state appellate court in February 2014, Zellner claimed in a post-trial petition that a second set of legible autopsy X-rays taken of the toddler's skull clearly showed the child suffered from a pre-existing injury when he died.
That petition also states an anonymous caller told Calusinski's father, Paul Calusinski, to find an enhanced set of X-rays at the Lake County coroner's office. Paul Calusinski contacted Coroner Thomas Rudd, who found the X-rays, the document states.
However, prosecutors said in their latest filing that defense attorneys were in possession of the X-rays two months before Calusinski's previous trial but never enhanced them using a computer program that could make them more legible.
Prosecutors also claim in the court document the X-rays do not negate the fact Calusinski was found guilty of throwing Benjamin to the floor. Whether Benjamin had a previous head injury or not is irrelevant because a jury found Calusinski's actions were a contributing factor in the death, prosecutors said.
If a new trial is granted, it would take place later this year, officials said.
Zellner said in a previous interview she is "confident" the court will award Calusinski a new trial.