Judge needs more time to decide on new trial in day care death

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   Melissa Calusinski
  

Lee Filas

 

 

A Lake County judge delayed a decision Tuesday on whether Melissa Calusinski should be granted a new trial for the death of a 16-month-old Deerfield child at a now-closed Lincolnshire day care.

Judge Daniel Shanes set a June 13 status hearing to rule on whether oral arguments should be heard in the case against Calusinski, 29, of Carpentersville, who was convicted of first-degree murder. Shanes said the delay was to give him time to review the voluminous material that has been presented.

In 2011, Calusinski was sentenced to 31 years in prison for causing Benjamin Kingan's fatal head injury.

Defense attorneys and prosecutors have filed written arguments. Shanes can rule immediately on the new trial request or hear oral arguments. If he rules against Calusinski, the case would be sent to the state appellate court.

Defense attorney Kathleen Zellner said during a news conference that she spoke with Calusinski this week in prison.

"Melissa is doing very well," Zellner said. "She understands how long the process takes."

Zellner claimed in a post-trial petition requesting a new trial that a second set of legible autopsy X-rays taken of the toddler's skull clearly shows Benjamin did not have a skull fracture and the child suffered from a pre-existing injury when he died.

"In our opinion, the case collapses when there is no skull fracture," Zellner said. "The jury was mislead from the beginning when they were told there was a skull fracture."

Prosecutors contend in a 37-page motion to dismiss the request that "new" X-ray evidence was actually old evidence defense attorneys had in their possession but never electronically enhanced before trial.

Prosecutors also claim the X-rays do not change the jury's findings that Calusinski was found 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.