Elected leaders feuding over day care murder case

  • Michael Nerheim

    Michael Nerheim

  • Thomas Rudd

    Thomas Rudd

  • Melissa Calusinski

    Melissa Calusinski

Updated 3/10/2015 6:04 AM

In an unusual public feud between two high-ranking elected officials, the Lake County state's attorney is rebuking the county coroner over comments made on a national television program about the handling of a murder case involving the death of a 16-month-old boy at a day care center.

State's Attorney Michael Nerheim spoke out after Coroner Thomas Rudd appeared on "48 Hours" and said a former forensic pathologist misdiagnosed the death of Benjamin Kingan at the now-closed Minee Subee in the Park day care center in Lincolnshire.


Rudd called for the case to be reinvestigated, as he has done in the past.

Melissa Calusinski, 28, of Carpentersville, who was a teacher's aide at the center, was convicted of throwing the child to the floor and is serving a 31-year prison sentence.

In light of Rudd's assessment, her attorney is reviewing the case with the likelihood that she will ask for a new trial.

But Nerheim, a Gurnee Republican, says Rudd's comments are not focused on the merits of the case.

He charges that Rudd is using the national exposure to launch his re-election campaign.

"It's apparent to me that Dr. Rudd at some point lost his objectivity," he said. "Unfortunately and sadly, he's using this case to further his political career."

Rudd, a Lake Forest Democrat, denied the allegation.

"It should be (reinvestigated). I can't do anything about it, but I feel it should be based on the evidence," he said. "I don't have the power to (reinvestigate the case.) I'm not the state's attorney's office."

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The debate

During the March 2 "48 Hours" segment, Rudd said he reviewed the case after he took office Dec. 2, 2012, and found evidence in forensic pathologist Eupil Choi's written autopsy report did not match the autopsy photos Rudd reviewed. Last week, he said the evidence reviewed by Choi during Calusinski's trial was "misinterpreted."

Rudd said the toddler had a 4- to 6-week-old head injury that was healing. He said the boy suffered another minor injury at the day care center, which caused more bleeding and resulted in his death.

"The injury in the child himself is not really new or old evidence; it was misinterpreted pathology," he said. "It was reviewed as an acute catastrophic injury. Instead, it is an old catastrophic injury with a small amount of acute bleeding, measuring 6 cc, about a teaspoon, that occurred just before he died."

"In my opinion, the jury made a decision based on the confession, not on understanding the pathology present," he added.

Rudd's statements counter Choi's trial testimony that the boy did not have a previous head injury and that he hit the floor with a force equal to that of a fall from a two-story building.


Rudd said he passed his evidence to forensic pathologist Nancy Jones, who agreed with Rudd's findings. Rudd said he confronted Choi about his testimony, which eventually led to Choi signing an affidavit that said the now-retired pathologist missed the previous injury.

Rudd said Friday he did not write the affidavit and he was not present when it was signed.

Nerheim, who was sworn into office the same day as Rudd, said he has twice reviewed the case and insists the evidence Rudd is promoting was argued in court by defense attorneys. Nerheim said he spoke with Choi after the affidavit came out, and Choi maintained the existence of a previous injury would not change his final opinion.

Nerheim said he sent Choi's testimony, the affidavit and additional evidence to be reviewed by Dr. Jordan Greenbaum, the medical director of Child Protection Center at Children's Healthcare of Atlanta, Georgia, and a former medical examiner in Wisconsin. Greenbaum agreed Rudd's findings would not change the cause of death.

"I have two expert pathologists -- one who did the autopsy, who saw the blood in the skull, saw the catastrophic injury with both eyes -- saying the new evidence doesn't change anything," Nerheim said. "These are the experts I'm relying on, not an elected official who came into the case two years after the fact, who is looking at slides on a microscope."

Nerheim stressed Rudd is not a medical examiner or forensic pathologist, and he is not allowed to perform autopsies.

"I looked at all the medical evidence they gave to the jury, and the defense used the previous injury idea at trial," he said. "The jury discounted it and found (Calusinski) guilty of murder."

Nerheim said he also never received a report or phone call from Rudd requesting a new investigation, nor did he see the final report from Jones regarding her work on the case.

"I called Rudd's office to get it, but he didn't answer the phone. Shortly after leaving a message for him, (Calusinski's defense attorney Kathleen) Zellner called me and sent over the affidavit." Nerheim said.

Rudd produced a letter dated May 8, 2013, showing Jones' findings were delivered to Nerheim's office. Nerheim acknowledged receiving that letter but said it also contained a letter Jones sent to the coroner requesting more time to review Rudd's findings. He said he has not received anything else from Rudd.

Rudd stressed he is a board certified anatomical and clinical pathologist.

"Anything Jones does back there (in the autopsy room), I have the ability to do and have done," he said. "In my role as coroner, I am not allowed to go into the (autopsy) room and cut. I am allowed to have data presented to me and analyze that data."

What happens next

Nerheim said he is willing to review new evidence in the case, but not the pre-existing injury discounted in court.

Zellner said there is new evidence but added she has until June to file a request for a new trial. She would not explain what the new evidence involves.

"We sent them the affidavit and asked them to review the case, and they said 'no,'" she said. "Now we are moving ahead to file the petition (for a new trial)." Rudd denied he's using the "48 Hours" piece to launch his re-election campaign.

"I have not formally announced my re-election campaign," he said, adding his re-election website featuring a video of him asking to be re-elected in 2016 is only exploratory at this point. "I have written nothing, I have not held a news conference, and I have not signed anything personally. Someone may have done something without my knowledge, but if so, I don't know about it."

Nerheim said he has not sent the case to his wrongful-conviction panel, a volunteer group that reviews cases. He said he has sent 15 cases to that panel since swearing in its members in February 2013.

"It's obvious there is a concentrated effort to place political and media pressure on me to grant a new trial," he said. "The fundamental flaw in that plan is that I do not respond to political or media pressure. I make decisions based on the facts and the law only."

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