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Judge denies new trial for daycare worker in toddler’s death

WAUKEGAN — A Lake County judge on Friday denied a motion seeking a new trial for a daycare worker who is serving a 31-year sentence in the 2009 death of a Deerfield toddler.

Attorneys for Melissa Calusinski had hoped that newly-discovered X-rays would cast doubt on the conviction of their client in the death of Benjamin Kingan.

In a three-day hearing, they had offered testimony that the X-rays provided to defense attorneys at trial — X-rays which purported to show that the toddler had suffered a skull fracture — had been made illegible on purpose.

Judge Daniel Shanes didn’t see things that way, and said there were no “new” X-rays.

“The evidence is clear now that there was never a second set of X-rays,” Shanes said in issuing his ruling Friday morning.

“Without a second set of X-rays, much of the defense’s claim falls apart like a house of cards.”

Benjamin Kingan was 16 months old when he died in January 2009. | Sun-Times

Benjamin Kingan was 16 months old when he died in January 2009. | Sun-Times

There had been conflicting evidence about Benjamin’s death presented at trial, but presenting more conflicting evidence now was not enough to order a new trial, Shanes said, noting that the prosecution’s case had not been dependent alone on the existence of a skull fracture.

Defense attorneys had said more legible X-rays of Benjamin’s skull were discovered by Lake County Coroner Thomas Rudd in June 2015. Calusinski’s attorneys had said they proved that the 16-month-old did not suffer a skull fracture, as the prosecution told the jury — 32 times — at Calusinski’s trial.

At a pre-trial hearing in 2011, lead prosecutor Christen Bishop, who is now a Lake County judge, told Shanes that the three X-Rays taken of the boy were “not readable or legible.”

During a nine-hour interrogation, Calusinski had confessed to intentionally slamming the boy’s head to the ground, though she initially had denied — at least 79 times, over six hours — having anything to do with Benjamin’s death.

Forensic pathologist Manny Montez had, at trial, testified that what he found was “significant trauma, violent trauma to the head.”

“In the pre-trial and trial records in this case, the words ‘skull fracture’ were used 93 times,” defense attorney Kathleen Zellner had argued at the recent hearing. “We are not claiming that the skull fracture was the cause of death. We are claiming that the skull fracture was mentioned by every doctor called by the state and was mentioned by Ms. Bishop in her opening and closing multiple times. The skull fracture was a critical part of their case.”

Instead, the defense has argued that Benjamin had a pre-existing injury from a bump on the head, but then the final blow came when he threw himself back in a tantrum at the daycare center on the day he died.

Contributing: Ruth Fuller

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