Appellate Court Should Grant Melissa Calusinski a New Trial in 16-Month-Year-Old Toddler Death Case

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A woman sentenced to 31 years in prison in 2011 for causing the death of a 16-month-old toddler was denied a new trial by an Illinois judge even though new evidence tends to cast serious doubt on her culpability. Lake County Judge Daniel Shanes, who previously sentenced Melissa Calusinski, said there was not enough new evidence to overturn her conviction for the death of Benjamin Kingan.

During the original trial, prosecutors argued that Benjamin died of a skull fracture caused by Calusinski. In a dubious confession, Calusinski, who was likely suffering from psychological disorders, admitted to specific details of what now seems like an accident. Defense attorneys pointed to X-ray evidence showing that Benjamin had a previous head injury that was mistakingly believed to be a skull fracture that caused his death. The latter testimony was paraded before the jury that voted for conviction.

Under normal circumstances, the law of the land does not favor the appellate review of convictions that have already been through the standard appeal process. Exceptions exist where the defendant can point to “newly discovered evidence” not available or reasonably discoverable by his lawyers at the time of the initial trial or appeal. Post-conviction petitions are arduous and often a long-shot.

Defense attorney Kathleen Zellner conceded that the original X-ray files existed at trial, but they were reduced to the point where they were not decipherable. Essentially, Zellner opined that the X-rays supplied under the rules of discovery (A process that envisions the equal and fair exchange of evidence the parties intend to rely on during the trial process) were useless. The new (and more reliable) depictions clearly established that Benjamin did not have or sustain a head fracture at the time he was killed, Zellner contended.

Last July, Lake County Coroner Thomas Rudd changed the official cause of Benjamin’s death from “homicide” to “undetermined,” citing the new X-rays. Dr. Eupil Choi, a pathologist who testified at Calusinski’s trial, has admitted that he missed the previous head injury during his autopsy on Benjamin, but stuck to his theory that the injury sustained while in Calusinski’s custody killed him.

Predictably (prosecutors always argue this) that the enhanced X-rays were not new evidence, but images the defense could have enhanced before trial. Shanes agreed with prosecutors that the X-rays did not amount to new evidence, and rejected Calusinski’s request for a new trial, upholding her conviction. Zellner says the result was anticipated and she plans to appeal saying the judge “totally missed the point” the defense was making and that she was pleased Shanes “made so many mistakes in the ruling.”


We understand that the courts, public and family members of the victim need finality and closure in tragic cases like this. However, the rules on what “newly discovered evidence” means need to be more liberally construed in favor of the convicted. In this case, the X-rays provided to the defense were defective and of no practical use. If the dictates of the Brady discovery rules are to have any teeth, the turning over of worthless scientific evidence by the prosecutor to the defense should be a violation requiring reversal of conviction as a matter of law.

There can be little doubt that the jury relied on the bogus X-ray exhibits or accompanying testimony when convicting the defendant in this case. The evidence, notwithstanding the defendant’s questionable confession (see below), was not harmless error.

There was apparently evidence that Benjamin had a behavior trait of banging his head on objects. The confession was obtained from Calusinski, a teacher’s aide at the former Minee Subee in the Park day care center in Lincolnshire, only after numerous denials (over 80) by Calusinski. There were some questions regarding her mental status at the time of the grueling interrogation. Confessions of this type are suspect. We also question the validity of having the same judge who presided over the trial in a case of this nature decide whether errors were made in the proceedings. A new trial should be ordered by the appellate courts.

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