Melissa Calusinski's long quest for a new trial in the death of a Deerfield, Ill., toddler was dealt a major setback Friday, when an Illinois judge rejected a bid to reverse her conviction.
Judge Daniel Shanes, who oversaw Calusinski's trial five years ago and sentenced her to 31 years in prison, said her lawyers' claims that she didn't get a fair trial "fall apart like a house of cards." He said that nothing that was presented during three days of recent testimony in the case convinced him that new evidence exists or undermined his confidence the verdict the trial jury reached.
"Having lost at trial, much of these claims now amount to Monday-morning quarterbacking," Shanes said.
Calusinski, who turns 30 on Tuesday, sat stoically as the judge announced his ruling in the high-profile case. Outside court, her father Paul Calusinski said he was disappointed in the outcome but not surprised. Attorneys for the Carpentersville family have vowed to press on and have said already said they will appeal.
"They framed my daughter for a murder she didn't do," Paul Calusinski said after decision. His daughter confessed to the crime but her advocates have long asserted the admission was coerced.
Melissa Calusinski's lawyer Kathleen Zellner asserted after the hearing that the judge "totally missed the point" about the evidence her team presented but said she was "just pleased the judge made so many mistakes in his ruling."
On the day he died, 16-month-old Benjamin Kingan, of Deerfield, was found unresponsive in his bouncy chair at Minee Subee in the Park day care center, with foam and blood coming from his nose. Paramedics tried to revive him but could not, and he was pronounced dead an hour later _ before his parents could see him.
During a 9-hour interrogation by police, Calusinski, who worked at the day care center and was supervising Benjamin when he fell ill, repeatedly denied harming the boy. But eventually, she confessed to slamming Benjamin's head on the floor shortly before his death.
At a hearing to reconsider her conviction, which concluded this month, defense attorneys said that newly discovered X-rays show Benjamin did not have a skull fracture the day he died, as alleged, but suffered from a prior head injury.
Zellner said the X-ray files that defense attorneys received before her trial had been compressed to a fraction of their original size, so that they were unreadable at trial, which she said amounted to a prosecutorial violation.
In addition, the doctor who performed the boy's initial autopsy, Eupil Choi, later admitted that he failed to diagnose a chronic subdural hematoma, a collection of blood on the brain's surface from an old injury.
Prosecutors responded by saying that the X-rays were not new, merely the same images that the defense could have brightened with software at any time. In addition, Choi maintained that the discovery of the old injury did not change his opinion that the boy died of a recent head trauma. And prosecutor Jason Humke argued that doctors debated the nature of the boy's injuries during the trial, and the jury weighed that at the time.
In his comments leading up the announcement of his ruling, Shanes also dismissed the notion that the X-rays in question were new.
Zellner attacked those comments after the hearing, saying Shanes "totally missed the point."
"It isn't that there's a second set of X-rays. It's that the original X-rays ... were compressed. The original set was not turned over in the format that existed in, which made the X-rays clear and readable," she said.
Calusinski, a 2005 graduate of Barrington High School with no criminal history, did not testify at her trial or the recent hearing. Before Benjamin's death, court records indicate, Calusinski lived with her parents in Carpentersville, and had worked in retail, food service and her parents' bait shop. She had done a lot of babysitting, including four years as a nanny, and earned praise from parents.
One of the complicating factors of the case is that testimony indicated that Benjamin had a habit of "head-banging," or throwing himself back while sitting, hitting his head on the floor. But his doctor testified that this was not uncommon in other children and did not normally lead to serious injury.
Slightly more than two months before his death, workers discovered a golf-ball-sized bump on the back of Benjamin's head. Two days later, he had a high fever, and his mother, Amy, took him to a doctor, and three days after that, he still had a fever, was prescribed antibiotics and recovered.
At a well-baby visit on Dec. 1, Benjamin's primary pediatrician, Dr. Daniel Lum, said he was "growing beautifully."
Two days before his death, he vomited numerous times at the day care, went home and slept through the night. The morning of the day he died, Jan. 14, 2009, day care workers said he had seemed happy and behaving normally, and ate grilled cheese and soup at lunch.
That day, a co-worker testified, she thought Benjamin fell and hit his head on the floor, though she did not see it, but she heard him cry and found him lying on the floor. She took him to his bouncy chair, where he was starting to fall asleep when the co-worker left with Calusinski in the room. Calusinski later found Benjamin unresponsive and called for help.
The case took a turn after the new Lake County coroner, Dr. Thomas Rudd, looked at the autopsy evidence and found slides that he said showed an old injury similar to a scab inside the brain.
Former Cook County Medical Examiner Nancy Jones was called in as a consultant and agreed that the boy had suffered a prior injury. A software expert testified that the X-ray images became visible only after going back to view the coroner's original images.
But prosecutors maintained any old injury was insignificant, and they relied on experts who testified that Benjamin died of a sudden severe injury that day.
The case drew national attention after CBS News ran an episode of "48 Hours" about the case, with excerpts from Calusinski's video interrogation, and an interview with her in prison.
Shanes, a former Lake County prosecutor himself, granted Calusinski's request for a hearing on the matter but gave little indication at its conclusion of how he would rule.
