A 29-year-old Carpentersville woman who has been serving time in a downstate prison since being convicted in 2011 of killing a toddler at a day care center returns to a Lake County courtroom next month for hearings to determine if she should receive a new trial.
Judge Daniel Shanes ordered the return of Melissa Calusinski so she can attend her post-conviction hearing, Aug. 18 and 19. The hearing will focus on new evidence defense attorneys said was uncovered after Calusinski was found guilty of killing 16-month-old Benjamin Kingan of Deerfield at the now-closed Minee Subee Day Care in the Park in Lincolnshire in 2009, Shanes said. She is not expected to testify.
Attorneys said the initial hearing would take two days, and will continue to Sept. 16 for the testimony of one witness and a final ruling.
If Shanes rules for Calusinski, her murder conviction would be vacated and a new trial would be set. If the request is denied, she would have the option to appeal the ruling to the state appellate court.
"This is a hearing determining whether the defendant should get a new trial," Shanes told attorneys. "This is not a trial on the charges."
Calusinski, who did not attend Tuesday's hearing, is serving a 31-year prison sentence after being found guilty of throwing Benjamin to the floor while working at the day care center. It is one of the most high-profile and controversial murder cases in county history.
The new trial request is based on what defense attorneys say is new evidence supporting their claim the toddler's death was caused by a previous head injury and not by Calusinski.
After an appellate court upheld the original guilty verdict, defense attorney Kathleen Zellner filed a 211-page new trial request claiming a set of legible X-rays and proof the boy suffered from a previous head injury was found during an investigation into the case but was never explored at Calusinski's previous trial.
Those documents claim Benjamin's head swelled like "an old-fashioned light bulb" due to the chronic concussions he suffered and not because of an acute injury, as pathologists previously had stated.
Lake County prosecutors responded by filing a 37-page motion to dismiss the request, claiming the new X-ray evidence was actually old evidence defense attorneys had in their possession but never electronically enhanced before the trial.
A key witness in the post-conviction hearings will be Dr. Eupil Choi, the forensic pathologist who conducted the autopsy after the boy's 2009 death and testified during Calusinski's trial.
After Calusinski was found guilty, Choi signed an affidavit for Zellner that claimed he missed a previous brain injury the child suffered. However, in a letter to the Lake County state's attorney's office, Lake County Coroner Dr. Thomas Rudd, attorneys and media outlets, Choi said his medical opinions had been distorted regarding the boy's cause of death. He said his opinion that Benjamin died as a result of violent catastrophic blunt force trauma never changed.
Defense attorney Doug Johnson and Assistant State's Attorney Stephen Scheller said they intend to question Choi under oath about his findings, trial testimony and the conflicting reports.
Attorneys are also expected to question Rudd, who officially changed the cause of death from homicide to undetermined. Rudd has said the second set of X-rays clearly shows no evidence of a skull fracture, and that no forensic evidence exists showing the head injury was intentionally inflicted.
Calusinski's father, Paul Calusinski, who has been steadfast in proclaiming his daughter was wrongfully convicted, said he was happy to hear she would return to Lake County for her next hearing.
"I'm very excited she is coming here," he said.