Judge denies new trial motion in day care murder case

FOX 32 / SUN-TIMES / AP - A judge has denied a motion for a new trial by a suburban Chicago woman who was convicted in the 2009 death of a toddler in her care.

Lake County Judge Daniel Shanes on Friday rejected the argument from Melissa Calusinski's attorneys that new X-rays reveal that 16-month-old Benjamin Kingan of Deerfield didn't die from a skull fracture caused by Calusinski, but from a prior injury.

Shanes instead found that he saw no evidence there was ever a set of "new" X-rays and without such evidence, Calusinski's attorneys case "falls apart like a house of cards."

Shanes presided at Calusinski's 2011 trial and sentenced her to 31 years in prison.

Calusinki's attorney, Kathleen Zellner, said Lake County judges "never admit they're wrong."

"I mean the judge basically just rehashed the prosecutors closing argument and totally avoided addressing the metadata and what we were saying," Zellner said.

"We expected this. Now we go to the appellate court," said Calusinski's dad, Paul.

Paul choked up as he thanked reporters for covering what turned out to be another legal setback for his daughter.

"You folks have kept my daughter's case alive, and without it, we wouldn't be where we're at today," he said. "As her father, and her family, we will not stop until she gets out."

Calusinski was convicted in November 2011 and sentenced to 31 years in prison. After a nine-hour interrogation, she confessed to intentionally slamming the boy’s head to the ground; prior to that confession, however, she had 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.

Prosecutors have argued that Benjamin died of a skull fracture that happened when Calusinski threw him to the ground in anger at a Lincolnshire day care center.

In August 2013, the pathologist who performed the autopsy on Benjamin, Eupil 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.”

According to testimony at trial, Benjamin suffered a head injury on Oct. 27, 2008, before Calusinski worked at the day care. Day care staff testified that Benjamin was a chronic “head-banger” and would throw his head against the ground during tantrums — which he did at least twice the day he died, according to a witness.

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