Calusinski denied new trial in death of toddler at Lincolnshire day care

Defense attorneys for a woman convicted of killing a 16-month-old boy by throwing him to the floor of a Lincolnshire day care center failed to produce sufficient new evidence to warrant a new trial, a Lake County judge ruled Friday.

Judge Daniel Shanes said the new evidence defense attorneys included in a 211-page petition and presented during three days of hearings in support of Melissa Calusinski's request for a new trial was unreliable or had already been presented during her 2011 trial.

"The court understands Mr. Calusinski loves his daughter and would do anything to help her," Shanes said in court, referring to Paul Calusinski and members of his family. "But the court must base its decision on facts."

Defense attorney Kathleen Zellner said the outcome was anticipated and she has already drafted her appeal.

"The judge totally missed the point," Zellner said outside the court building in Waukegan minutes after Shanes' decision. She said she was pleased Shanes "made so many mistakes in the ruling."

Melissa Calusinski, 29, of Carpentersville now heads to the Illinois Appellate Court for the latest chapter in one of the most high-profile and controversial murder cases in county history.

Calusinski was a teacher's aide at the former Minee Subee in the Park day care center in Lincolnshire that Benjamin Kingan of Deerfield attended with his twin sister, Emily. Police said Calusinski was alone in the classroom with Benjamin and seven other toddlers when she hurled him to the floor.

In two videotaped statements to police that were played at trial, Calusinski said Benjamin was fussing as she carried him across the room, the other children present were causing a commotion, and she became overwhelmed and frustrated.

She later said that confession to police was coerced.

A jury found Calusinski guilty, and Shanes sentenced her to 31 years in prison.

The verdict touched off about five years of appeals before Zellner's June 2015 new-trial petition. It cited new evidence that surfaced in the discovery of legible X-rays that proved the boy suffered from a previous head injury.

The defense said those X-rays were discovered after Paul Calusinski was contacted about their existence by an anonymous caller. Court documents state Paul Calusinski called Lake County Coroner Thomas Rudd, who found the X-rays.

Zellner said in the court document the second set of legible X-rays of Benjamin's skull clearly show the child died of a pre-existing injury. Defense attorneys said they would have used the second set of legible X-rays at Calusinski's trial if they had had them.

After the legible X-rays were discovered, a forensic pathologist determined Benjamin died from a chronic case of cerebral swelling due to repetitive concussions brought on after the child repeatedly bumped his own head.

However, in a 50-page written ruling handed out after Friday's court hearing, Shanes discounted the X-rays on several levels.

The second set of X-rays never existed, Shanes said, but were simply enhanced versions of the X-rays previously given to defense attorneys at Calusinki's trial.

The enhanced X-rays would not lead to a different result at trial, Shanes said, and Calusinski's former defense attorneys did not do their due diligence to enhance the original X-rays they received because they never planned to use them in their trial strategy.

After reviewing the evidence and previous trial transcripts, and hearing testimony, the defense's argument "fell apart like a house of cards," Shanes said.

Paul Calusinski was not swayed by the ruling.

"From the very beginning, folks, I told you all she is innocent," he said after the hearing. "All I can say is we are prepared and it can go either way, and we're ready."

Lake County State's Attorney Michael Nerheim said in an emailed statement the "court affirmed what we have known all along."

"The court, in its ruling, indicated that the defense case amounted to nothing more than a house of cards and Monday morning quarterbacking," Nerheim said. "What is most disappointing about this case is that the defense team knowingly mischaracterized evidence as 'new' when it clearly was neither new nor significant."

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  Paul and Cheryl Calusinski leave Lake County court after a judge refused to grant a new trial for their daughter Melissa Calusinski. Brian Hill/
  Scott Panek, of Waukegan closest to camera, and Russell Jackson of Elgin hang "Free Melissa" shirts Friday before a news conference in Waukegan. A Lake County judge refused to grant a new trial for Melissa Calusinski, who was convicted in 2011 of killing a toddler at a day care center where she worked. Brian Hill/
  Defense attorney Kathleen Zellner talks about the Melissa Calusinski case Friday in Waukegan. Zellner said "the judge totally missed the point" in refusing to grant a new trial for the Carpentersville woman. Brian Hill/
  Cheryl Calusinski reacts during a Friday news conference after a Lake County judge refused to grant a new trial to her daughter Melissa Calusinski in the murder of a toddler at Lincolnshire day care center. Brian Hill/
  Melissa Calusinski's father, Paul, hugs defense attorney Kathleen Zellner after a news conference Friday in Waukegan. Zellner said she has drafted an appeal after a Lake County judge refused to grant a new trial in Melissa Calusinski's murder case. Brian Hill/
Melissa Calusinski Pool/Chicago Tribune, Stacey Wescott
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