New trial denied in Lincolnshire day care murder case; supreme court next

The woman convicted of murdering a 16-month-old boy in 2009 at a Lincolnshire day care center will appeal her case to the state's Supreme Court, arguing prosecutors withheld higher-quality X-ray evidence that could have cast doubt on the verdict.

An appellate court panel Monday unanimously rejected Melissa Calusinski's push for a new trial in the death of Benjamin Kingan of Deerfield at the former Minee Subee in the Park day care and upheld her November 2011 first-degree murder conviction.

Calusinski, 31, is serving a 31-year prison term.

"We firmly believe Ms. Calusinski's conviction will be reversed for a new trial, whether that happens with the Illinois Supreme Court or in federal court," attorney Kathleen Zellner wrote in an email Monday. "Ms. Calusinski was deprived of a fair trial because the state withheld critical evidence that would have undermined confidence in the verdict against her."

In April, Zellner argued to the appellate panel that X-rays shared with Calusinski's defense lawyers contained a fraction of the data in originals. The larger images, which could have been enhanced, would have cast doubt on whether Benjamin suffered a skull fracture and if his death was caused by Calusinski, Zellner argued.

Police said Calusinski was alone in the classroom with Benjamin and seven other toddlers on Jan. 14, 2009, when she threw him to the floor. In two videotaped statements to police 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.

At the April hearing, Zellner argued a defense expert, pediatric neuroradiologist Robert Zimmerman, 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.

Justices disagreed in their 32-page ruling that the enhanced X-rays would have put the case in a different light and could undermine the verdict.

"This court has viewed multiple photographs in evidence depicting the purported fracture. Contrary to Dr. Zimmerman's testimony, which leaves the impression nothing existed, something is indisputably there," the panel wrote, adding Zimmerman's testimony should not necessarily receive more weight than other experts who testified for the state at trial.

"There is no reasonable probability that Dr. Zimmerman's testimony would have changed the result of defendant's trial. His opinion merely contradicted that of four other experts, two of whom actually examined Ben's skull," read part of the ruling.

A message left with the Lake County state's attorney's office was not immediately returned.

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