Melissa Calusinski, and Det. George Filenko, later the commander for the Lake County Major Crimes Task Force, in a photo capture from the tape of her interrogation, which lasted more than nine hours.

The saga involving Melissa Calusinski and her lawyers’ efforts to present new evidence that could potentially overturn her conviction, and lead to a re-trial, has been pushed back to a June 13 hearing.

Lake County Circuit Judge Daniel Shanes, the presiding justice in her 2011 trial and conviction, stayed the action April 26 to allow him more time to review the materials before ruling on allowing the new findings.

“The proceedings are still in the post-conviction phase,” said Cynthia Vargas, communications manager for the Lake County State’s Attorney’s Office. “The court found it necessary to set a new hearing date in order to properly review the new materials. The sheer amount of documents that must be read for content are voluminous.”

Calusinski, 29, was convicted in the murder of 16-month-old, Benjamin Kingan, through what has been deemed a coerced confession that led to her admission of slamming the child down and causing a skull fracture. The jury decision, and 31-year sentence, was upheld in a second trial largely based on the same evidence involving a taped confession and testimony from the autopsy pathologist.

Calusinski’s legal team, led by Kathleen Zellner, has accumulated several key pieces of contradictory evidence that are favorable to the former Carpentersville resident and Minee Subee Day Care Center worker. X-rays taken at the child’s autopsy were found in the office of Lake County Coroner Dr. Thomas Rudd last year.

The photos showed no skull fracture when a contrast gradient icon was activated. At the time of the criminal trials, knowledge and application of the gradient icon was not related to attorneys. Rudd also found the original tissue slides verifying a pre-existing injury at the back of the child’s head with hemorrhaging.

Court documents also identify another piece in defense’s arsenal: an affidavit from the original autopsy physician, Dr. T. Choi, stating his findings of a skull fracture were in error and concurred with tissue samples showing the existence of the old injury. Rudd also changed the cause and manner of death, from homicide to undetermined.

A press conference, following the hearing, found Zellner questioning the prosecution on these points before a phalanx of local, metro, and national news media.

“We have to figure out why the X-rays were legible at the time for prosecution, and then illegible when given to the defense, and then discovered to be in legible condition again, all these years later,” she said.

Causinski family members, and friends, stood by, as she spoke.

“Without the skull fracture, the state’s case collapses … we have absolute and concrete evidence now that there was no skull fracture,” Zellner said. “That was the entire basis of the state’s case. That’s very huge.”

The question remains whether Shanes will permit an evidentiary hearing to proceed opening the door to the new evidence, and testimony from potential witnesses such as the original pathologist, the county coroner, the original defense attorneys, and the original prosecutor, Christine Bishop, now a county judge.

In a document, previously obtained by the Chronicle through the freedom of information act, a pre-trial meeting between Bishop, Choi, a defense team representative, and another pathologist, revolved around Choi’s statements that his assessment may be in error. Bishop still proceeded with the prosecution of Calusinski, using the faulty autopsy findings. The taped confession, after more than nine straight hours of interrogation, was cited as the key element for conviction.

Melissa Calusinski

Lake County State’s Attorney Michael Nerheim’s office could not comment on the document being called into the proceedings, should the evidentiary hearing be allowed to go forward. The end result could entail an action to vacate the conviction, whereby prosecutors would decide on the merits of a new trial. Zellner has already stated her office will appeal any ruling that denies the hearing.

Calusinski remains incarcerated at the Menard Correctional Center in Lincoln.