Testimony from an investigator during Friday's hearing to determine if a Carpentersville woman found guilty five years ago of killing a toddler can receive a new trial raises questions about key evidence in the case.
Former Waukegan Police Chief Bill Biang, who works as investigator for the Lake County state's attorney's office, testified that subpoenaed phone records from Paul Calusinski -- father of convicted murderer Melissa Calusinski -- do not show he received the anonymous call he has claimed instructed him to find a previously undisclosed set of legible autopsy X-rays in the death of 16-month-old Benjamin Kingan.
Introducing those images as new evidence is key for defense attorney Kathleen Zellner, who claimed in a 211-page court document that Melissa Calusinski, 29, did not throw Benjamin to the floor of the now-closed Minee Subee in the Park day care in Lincolnshire. The defense has claimed since 2015 the Deerfield boy died of a previous head injury that wasn't apparent in the original, poor quality X-rays. The injury ruptured when the boy threw himself backward on the floor that day, defense experts have said.
Prosecutors have long argued the X-rays are enhanced copies of the originals that were provided to defense attorneys before Calusinski's 2011 trial. They also argued defense attorneys introduced evidence at the trial that Benjamin suffered a previous injury, but the jury found her guilty of murder anyway. She is serving a 31-year prison sentence.
And former Assistant State's Attorney Matt DeMartini testified in August he made copies of the autopsy X-rays he received from Lake County coroner's office and sent them to the defense before Calusinki's trial. He also testified an image-lightening tool was sent with the X-rays to previous defense attorneys.
In the new trial request filed more than a year ago, Zellner stated Paul Calusinski received an anonymous call to his cellphone at 2:45 p.m. June 10 that instructed him to find a set of legible X-rays that had never been introduced at his daughter's trial. The call prompted him to contact Lake County Coroner Thomas Rudd, who located the images that were then given to Zellner.
But Biang testified Friday that Rudd and Paul Calusinski participated in a six-minute conference call with Zellner's law office at 2:38 p.m. that day, minutes before the alleged anonymous phone call was said to have been received. And Paul Calusinski called his wife from his cellphone at her place of employment at 2:45 p.m., the same time as the alleged call. When asked by Assistant State's Attorney Scott Hoffert if he was able to identify all the phone calls received on Paul Calusinski's cellphone June 10, Biang said, "Yes."
Under cross examination, Biang said he did not know who was on the cellphone calls or what was said during the conversations.
Paul Calusinski later testified he only "glanced through" a court affidavit he signed that explained details regarding the anonymous cellphone call. He said the document he signed was "incorrect," and the anonymous call instead was made to his house phone.
"I signed it in my home," he said in court. "I read it but glanced through it."
The exchanged highlighted the third and final evidentiary hearing for Melissa Calusinski, who confessed to police to throwing the toddler to the ground in 2009 but has since claimed the confession was coerced. She continues to maintain her innocence.
The first two days of the hearing took place Aug. 18 and 19 but was continued to Friday to wrap up remaining details.
Calusinski was transferred from a downstate prison to attend Friday's hearing. She has not testified during the hearings. One major witness who was expected to testify Friday was Dr. Nancy Jones, who wrote in an affidavit included in a court document that Benjamin suffered from a previous head injury, which caused his death. Jones was unable to attend Friday's hearing due to medical issues, and Judge Daniel Shanes said he would use previous court documents provided by Jones as a basis for her testimony.
If Shanes rules in favor of Calusinski, her murder conviction would be vacated and a new trial set. If the request is denied, she would have the option to contest the ruling with a state appellate court.