An anonymous phone call, new X-ray evidence and a fresh try at freedom for convicted child killer

WRITTEN BY BY RUTH FULLER SPECIAL TO THE SUN-TIMES POSTED: 06/23/2015, 02:47PM

Melissa Calusinski, shown here at the Logan Correctional Center in 2013 | Sun-Times file photo

Earlier this month, Paul Calusinski, who has been fighting for years to get his daughter, a convicted child killer, out of prison, got an anonymous call on his cellphone.

The man told Calusinski he needed to have his attorneys get from authorities the “second set” of X-rays of the 16-month-old boy that Melissa Calusinski was convicted of killing at a Lake County day care center where she worked in 2009.

“Who is this?” Calusinski asked, but the man hung up without answering.

Now, those X-rays, previously unknown to Melissa Calusinski’s defense lawyers at trial, form a central part of a petition filed in court Tuesday asking a judge to overturn the conviction of Calusinski, now 28, of Carpentersville, or grant her a new trial.

Calusinski was found guilty in November 2011 of first-degree murder in the January 2009 death of 16-month-old Benjamin Kingan, who was from Deerfield. She was sentenced to 31 years in prison and has been incarcerated for six years.

“[Calusinski], who has no history of violence and had absolutely no motive to harm Ben, was convicted based on irrefutably false medical evidence offered by the state’s testifying experts,” according to the motion filed by Calusinski’s attorney, Kathleen Zellner.

The X-rays add to what the defense describes as an accumulating mass of evidence that the boy did not die from a head fracture caused by Calusinski but from a previous injury that led to a subdural hematoma — a bleeding outside the brain that increases pressure on it. What’s more, a key prosecution medical expert has admitted he missed that the boy had a prior injury and testified in error at trial.

Calusinski confessed to intentionally slamming the boy’s head to the ground out of frustration while working at the now-closed Minee Subee in the Park day care center in Lincolnshire. But that confession came during an interview that lasted more than nine hours, in which she initially denied having anything to do with Benjamin’s death at least 79 times, for over six hours. Her attorneys have said Calusinski eventually confessed, in part because of her low IQ and her belief that she would be allowed to go home.

Calusinski’s only exposure to the criminal justice system prior to this was after she had been raped, which she reported to the police before they began their interrogation of her, according to the motion.

“That experience was fresh in [Calusinski’s] mind when the detectives confronted her in the small room where she would spend the next 9 hours,” the motion states. “The door remained shut at all times. She was never told she could leave or make a phone call.”

Calusinski was one of several day care workers questioned by the Lake County Major Crimes Task Force two days after Benjamin’s death. The investigation centered on the day care workers after forensic pathologist Eupil Choi, who performed the original autopsy of Kingan, told police that that Benjamin’s injury was equivalent to a one-to-two story fall; that it was a skull fracture; that it was not self-inflicted; and that it happened 30 minutes to 3 hours before his death.

However, in August 2013, Choi said in a sworn affidavit that the boy “had suffered an old injury that predated January 14, 2009,” the date of the boy’s death, which he had “missed.”

“Dr. Choi’s mistake not only caused [Calusinski’s] arrest and resulted in the failure to suppress her ‘confession,’ it also caused [her] conviction,” the motion states. “[Calusinski’s] entire theory of the case was that Ben suffered a prior head injury which resulted in a chronic subdural hematoma caused by a prior injury.”

According to testimony at trial and stated in the motion, Benjamin had suffered a head injury on Oct. 27, 2008, before Calusinski worked at the daycare center. Defense experts at trial said it resulted in a chronic subdural hematoma, which was reinjured by a self-inflicted wound on the day he died.

Day care staff and Benjamin’s parents testified that he was a chronic a “head-banger” and would throw his head back during tantrums – as a witness said he did at least twice the day he died.

For the first year of his life, Benjamin’s head circumference was consistently around the 50th percentile compared to other children his age. On Dec. 1, 2008, Ben’s head circumference increased to the 75th percentile. At the time of his death a few short weeks later, Ben’s head measured in the 95th percentile, the motion states.

Perhaps the most significant charge in the motion came after the anonymous tip was phoned into Calusinski’s father on June 10, 2015. Paul Calusinski received the phone call on his cellphone from a number that was listed as “private.” A male voice said, “Mr. Calusinski, you need to tell your attorneys to get the second set of x-rays of Ben Kingan from the Lake County Coroner’s Office,” according to the motion.

Lake County Coroner Thomas Rudd located the second set of x-rays, which he turned over to Zellner and forensic pathologist Nancy Jones, the former Cook County medical examiner.

At trial, Paul DeLuca, one of Calusinski’s trial attorneys, subpoenaed all of Benjamin’s X-rays and was given a copy of X-rays that could not be read.

But the second set of X-rays was clear. Zellner in the motion contends that prosecutors committed a serious discovery violation in failing to hand over the clear set.

In addition, Chief Deputy Coroner Paul Foreman is quoted in the motion, saying that “I was present when Dr. Choi reviewed the X-rays, including the head x-ray, and observed him reviewing the x-rays. All of the x-rays that I took were clear and readable.”

Also, while the state referenced the skull fracture no less than 32 times during the trial, according to the motion, after looking at the X-ray, Jones said that there is no fracture. What Choi noted as a fracture is actually an accessory suture, which is the growth plate that allows the skull to expand while the brain grows.

Before this motion, Lake County’s top prosecutor, Mike Nerheim, has repeatedly declined to reopen Calusinski’s case or to put it in front of the wrongful convictions panel that he formed shortly after being elected in 2012. Nerheim has said that he reviewed the case and has found nothing to give him pause about the guilty verdict.

Nerheim said in an email Tuesday afternoon that he had not yet seen the court petition and offered no additional comment.

Since 2010, six men, who collectively spent a total of 95 years in prison, have been exonerated for wrongful convictions in Lake County.

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