The post-conviction hearings seeking a new trial for Melissa Calusinski ended with a Sept. 16 session, highlighted by several witnesses, new aspersions, and closing arguments. Presiding Lake County Circuit Judge Daniel Shanes stated he would render his decision Sept. 23 on whether the former daycare worker receives a new trial on her murder conviction, released due to the new evidence, or has her petition denied.
“I can’t guarantee how long this will take, however if longer deliberation time is needed, both sides will be informed,” said Shanes, “I want to thank the court support staff … both sides of the attorneys … I will take all this under advisement, court is adjourned.”
Cheryl Calusinski, Melissa’s mother, burst into tears and was comforted by her sister-in-law, Helen Barrett. Having to view Melissa Calusinski through a court divider glass had taken its toll on the family through the three days of proceedings initiated last August, which relived the previous two jury trials. “She looks good considering she’s been in jail so long,” said Barrett. “We’d rather have her home.”
The family of 18-month old toddler Benjamin Kingan, whom Calusinski was convicted of killing through blunt force trauma by dropping him, at the now-shuttered Minee Subee Day Care Center in Barrington, were equally uneasy. They left the audience section several times, during the more graphic photos and testimony, and issued no comment following the proceedings.
The petition for relief was set in motion June 10, 2015, when new X-rays were discovered by Lake County Coroner Dr. Thomas Rudd, and brought to better clarity by coroner staff member, Mike Reid, at Rudd’s direction. The X-rays were allegedly discovered after an anonymous phone call to Melissa’s father, Paul Calusinski.
The quality of the X-rays was a major point of contention, as experts testified that the metadata in the property boxes showed they were in .Tiff format, a larger landscape, and the CD version given to the previous defense attorney, Paul De Luca, in a .jpeg format. “The data is there, and it was available in January 2009 … the court can understand the difference between uncompressed data, and compressed,” said lead defense attorney, Kathleen Zellner.
“They could have been exported in .Tiff, and there is no question of what he was shown is a fraction of what he should have been given,” she said. “I don’t care about political ambitions, extraneous phone calls … all the court needs to look at … is the hard metadata of what Mr. De Luca received … there is no skull fracture.”
Earlier, William Biang, an investigator for the Lake County State’s Attorney’s Office, had outlined graphics of subpoenaed cell phone records from Rudd and Paul Calusinski, and Calusinski’s home phone, from the June 10, 2015 date, when the alleged anonymous phone call indicating that readable X-rays were available.
“I went over Calusinski’s cell phone calls, and found he had called Otto Engineering (his wife’s employer) at the time of the anonymous call, and a conference call between Dr. Rudd, Calusinski, and Ms. Zellner’s office.”
Paul Calusinski was called to the stand, and questioned by prosecution attorney, Stephen Schiller, about his affidavit indicating the anonymous call came through his cell phone.
“I was mistaken, it came through my home phone since we have cable access that prints the number on the TV screen.”
Schiller, in his closing arguments, said, “So, we have him making a call from his cell phone to his home phone, at about that time he says he received an anonymous call. Is that because we have the phone records now … we’re not saying that a skull fracture killed this child, the other evidence shows what occurred.”
Zellner’s reply, in her statements, “In the pre-trial and trial, a skull fracture was referenced 93 times, and overall 275 times … the state made it material, and to say, that it doesn’t matter is just incorrect. There is also Dr. Manuel Montez, who was unimpeached, stating he manipulated the linear fracture, had the blood and tissue on his hands.
“You heard testimony, from Dr. Robert Zimerman, the foremost authority, saying it’s not possible for a fracture to be observed in a clinical setting, and not appear on an X-ray,” she said. “Dr. Montez testified falsely on this issue. This does not indicate homicide.”
With the hearings drawn to a close, Zellner did indicate that should the request for relief be denied, the case would be appealed. For Melissa Calusinski, she was led back into the recessed of the Lake county Jail facility, for transport back to the Logan correctional Center in Lincoln, to await the outcome of her future.