Attorney: Better X-rays exonerate day care worker convicted of killing toddler

Attorneys for a former day care worker convicted of murdering a 16-month-old in 2009 told an appeals court Wednesday key X-ray evidence provided by prosecutors was unreadable, was not examined by defense experts and ultimately prevented their client from receiving a fair trial.

"This is a game changer," Kathleen Zellner - an attorney for Melissa Calusinski, who is serving a 31-year prison sentence - said of larger, more detailed X-rays that Zellner said show the toddler did not die from a skull fracture. "This is new evidence. It was evidence that wasn't disclosed."

A Lake County jury in November 2011 convicted Calusinski, now 31, of first-degree murder in the death of toddler Benjamin Kingan of Deerfield. Calusinski was working as a teacher's aide at the former Minee Subee in the Park day care center in Lincolnshire, where Benjamin attended with his twin sister, Emily.

Police said Calusinski was alone in the classroom with Benjamin and seven other toddlers when she hurled the child to the floor on Jan. 14, 2009. 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 were causing a commotion, and she became overwhelmed and frustrated.

She later said the confession was coerced.

Lake County Judge Daniel Shanes sentenced Calusinski to 31 years in prison, and an appellate court upheld Calusinski's murder conviction in February 2014.

Zellner pushed for another trial for Calusinski in June 2015, saying new evidence showed Calusinski was innocent. Shanes ruled in fall 2016 the new X-rays were simply enhanced versions of the X-rays previously given to defense attorneys at Calusinski's 2011 trial and would not lead to a different result at trial.

On Wednesday, Zellner took the case back to the three-judge appellate panel, disputing Shanes' ruling and arguing the X-rays initially turned over by prosecutors were compressed to exclude 98 percent of data and were essentially unreadable by defense experts.

A pediatric neuroradiologist reviewed larger, more detailed X-rays and determined there was no skull fracture, which Zellner said had been the basis of the state's argument for first-degree murder and was mentioned 93 times by prosecutors in closing arguments.

"Melissa Calusinski did not have the benefit of having a radiologist to testify at her trial that there was not a fracture," Zellner told the three-judge panel. "In this case, what we have is a deliberate effort to withhold this evidence."

Zellner also argued that a forensic pathologist who conducted Benjamin's autopsy later admitted Benjamin had suffered a prior injury, raising further doubt on the guilty verdict.

However, Mary Beth Burns, of the state's attorney's appellate prosecutor's office, argued that Lake County prosecutors turned over all the evidence they had, including X-rays. Burns said numerous prosecution witnesses testified to the skull fracture.

"What was turned over was capable of being opened up. It may have required a computer expert to do so," Burns said. "They tendered what they had. Nothing prevented both the state and defense from going to the coroner and saying, 'We can't read these, open them up for us.'"

After the hearing, Zellner said she was "extremely optimistic" a new trial would be ordered. "This is a totally different case than it was when it went to the jury."

Calusinski's father, Paul Calusinski, said he believes Zellner's argument not only will cause the appellate panel to reverse the guilty verdict but also to set his daughter free.

"We're prepared if need be to go to the Illinois Supreme Court," Paul Calusinski told reporters. "We're ready, willing and able, and I hope and pray this is the end because enough is enough. My daughter suffered so much. She's been in prison for something she didn't do. She's in jail doing tine for no crime."

The appellate panel took the matter under advisement and did not give a date for its decision.

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  Kathleen Zellner, an attorney for Melissa Calusinski, said Wednesday that key X-ray evidence provided by prosecutors was unreadable, not examined by defense experts and ultimately prevented her client from receiving a fair trial. "This is a game changer," she said. Rick West/
  Paul Calusinski, father of Melissa Calusinski, says he hopes new evidence will persuade an appeals court to set his daughter free. Rick West/
  Kathleen Zellner, the attorney for Melissa Calusinski, speaks Wednesday after a hearing at the appellate courthouse in Elgin Wednesday. Rick West/
  Paul Calusinski, father of Melissa Calusinski, speaks after a hearing Wednesday in Elgin. Rick West/
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