Calusinski a step closer to getting new trial in Lincolnshire day care murder

  • Melissa Calusinski is serving a 31-year prison sentence for killing 16-month-old Benjamin Kingan at the now-closed Minee Subee in the Park in Lincolnshire.

    Melissa Calusinski is serving a 31-year prison sentence for killing 16-month-old Benjamin Kingan at the now-closed Minee Subee in the Park in Lincolnshire.

  • Lake County Judge Daniel Shanes, left, speaks with Lake County Assistant State's Attorney Stephen Scheller, right during a post-conviction hearing Monday at the Lake County courthouse for Melissa Calusinski, who was convicted of murder in the death of 16-month-old Benjamin Kingan. Shanes granted Calusinski a hearing to determine if she should receive a new trial.

    Lake County Judge Daniel Shanes, left, speaks with Lake County Assistant State's Attorney Stephen Scheller, right during a post-conviction hearing Monday at the Lake County courthouse for Melissa Calusinski, who was convicted of murder in the death of 16-month-old Benjamin Kingan. Shanes granted Calusinski a hearing to determine if she should receive a new trial. Pool/Chicago Tribune, Stacey Wescott

 
 
Updated 6/13/2016 7:47 PM

A Lake County judge will hold an evidentiary hearing to decide whether Melissa Calusinski should be granted a new trial for the death of a 16-month-old Deerfield boy at a now-closed Lincolnshire day care.

Judge Daniel Shanes set a July 8 status date to review ground rules for the hearing to determine if Calusinski, 29, of Carpentersville, deserves a new trial. The evidentiary hearing date will be set a that time.

 

"I'm glad the judge saw there is new evidence and that evidence needs to come out," Calusinski's father, Paul Calusinski, said as he wiped away tears after Monday's hearing at the Lake County courthouse in Waukegan. "Now we're in this step to where the next step is the evidentiary hearing where you will all see that my daughter not only did not do this crime, but evidence was withheld and ... all I can say is God bless, I can't wait for my baby to come home."

Shanes could have ruled to grant a new trial, throw out the new trial request by Calusinski, or hold the evidentiary hearing. Had he ruled to throw out the new trial request, the case would have transferred to the state appellate court.

Attorney Kathleen Zellner said she was "very pleased" by the decision and looks forward to presenting new evidence in court to prove Calusinski is innocent of the charges.

"Only 1 percent of all post-conviction petitions reach the stage where a hearing is allowed," Zellner said. "If the judge rules in our favor at the evidentiary hearing, then her conviction is vacated."

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If the conviction is vacated, the state would need to hold a new trial for Calusinski. However, if Shanes rules against Calusinski, she and Zellner would have the option to appeal the case to the state appellate court.

Calusinski, who did not attend Monday's court hearing, is serving a 31-year prison sentence after she was found guilty in 2011 of throwing Benjamin Kingan to the floor at the Minee Subee Day Care in the Park in Lincolnshire.

After an appellate court upheld the verdict, Zellner filed a 211-page new trial request in Lake County. In the document, she said a second set of legible X-rays and proof the boy suffered a previous injury were never explored at Calusinski's trial.

In the court document, officials said Benjamin's head swelled like "an old fashioned light bulb" due to the chronic concussions he suffered, and not an acute injury, as previous pathologists stated.

However, prosecutors filed a 37-page motion to dismiss the request, claiming the "new" X-ray evidence was actually old evidence defense attorneys had in their possession but never electronically enhanced before the trial. Prosecutors also said the X-rays do not change the jury's findings Calusinski was guilty of throwing the boy to the floor, which caused his death.

They added in the document that, even if the boy had a previous head injury, a jury found her actions were the contributing factor in his death.

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