Judge allows bid for new trial in Lincolnshire day care center murder

As expected, a Lake County judge on Monday did not dismiss a petition seeking a new trial for a Carpentersville woman who claims she is wrongfully incarcerated for a toddler's 2009 death at a Lincolnshire day care center.

Lake County Judge Daniel Shanes instead gave Lake County prosecutors 90 days to respond to the post-conviction petition filed by attorneys for Melissa Calusinski, 28. Prosecutors previously were barred from responding to a 211-page petition turned over by Calusinski's lawyers earlier this year.

The move was foreseen, lawyers said, because judges usually move post-trial petitions to a second stage, giving prosecutors a right to rebuttal.

Assistant Lake County State's Attorney Stephen Scheller declined to comment Monday.

Calusinski's attorney Kathleen Zellner said a decision on a new trial likely would not occur until closer to spring of 2016. She said she is "confident" the court will award Calusinski a new trial.

Calusinski was sentenced to 31 years in prison after a jury in 2011 convicted her of first-degree murder in the death of 16-month-old Benjamin Kingan. Lake County prosecutors alleged Calusinski threw the Deerfield boy to the floor at the Minee Subee in the Park day care in Lincolnshire, causing a fatal head injury.

In the post-conviction petition, Zellner argues a set of legible autopsy X-rays taken of the toddler's skull clearly showed the child was suffering from a pre-existing injury when he died. In addition, she said, an expert will show Benjamin did not have a skull fracture as state experts testified at trial.

The petition states an anonymous caller told Calusinski's father, Paul Calusinski, to find the 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.

Attorney Paul DeLuca, who represented Calusinski at her 2011 trial, is quoted in the petition as saying he was given an illegible set of X-rays by county prosecutors before the trial but never received the legible X-rays. DeLuca also states he would have used the second set of X-rays at trial if he had had them.

The petition argues that Benjamin's head swelled like "an old fashioned light bulb" due to chronic concussions he suffered, and not an acute injury on the day he died, as state pathologists stated.

Lake County State's Attorney Michael Nerheim said previously the post-conviction petition is a standard document "filed by defendants who have been convicted and sentenced for various criminal offenses."

Paul Calusinski said Monday his daughter will be "ecstatic" at the judge's decision.

"Melissa is doing wonderful," he said. "She's innocent, and it will be proven."

An Illinois appellate court upheld Calusinski's murder conviction in February 2014.

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