Melissa Calusinski appears at a 2016 evidentiary hearing in Lake County Circuit Court. She is serving a 31-year sentence for the death of 16-month-old Benjamin Kingan. (Photo courtesy of Chicago Tribune pool)

A petition seeking clemency for Carpentersville’s Melissa Calusinski is in the hands of the Illinois Prisoner Review Board, and ultimately, Gov. JB Pritzker.

The argument for her release was presented at a July 9 hearing in Springfield, with Lake County prosecutors and her defense attorney, and witnesses for both sides, in attendance.

The board has 60 days from the hearing date to tender its recommendation to the governor for a decision.

Calusinski, 38, was convicted in the 2009 death of 16-month-old Benjamin Kingan at a Lincolnshire daycare facility. She is serving a 31-year sentence for first-degree murder and aggravated battery of a child.

However, notes of a wrongful conviction were always present based upon an apparently coerced confession, questionable testimony, evidence that may have been altered or withheld, histology slides showing a chronic injury, and an aggressive prosecution.

Calusinski admitted to tossing the child down, during a nearly 10-hour interrogation, and led to believe she could “go home to her puppy,” if she confessed.

The autopsy physician, Eupil Choi, indicated the child died from a skull fracture. Choi admitted the error in an affidavit, presented at the hearing.

Choi also authored a letter about a pretrial meeting to then-Lake County Coroner Thomas Rudd that

The Illinois Prisoner Review Board hears the clemency petition of Melissa Calusinski at a July 9 hearing. (Photo courtesy of Dr. Thomas Rudd)

he “missed” a subdural hematoma on the back of the child’s head indicating a chronic injury. The skull fracture was actually growth plates. At the meeting was lead prosecutor Christen Bishop, now a county judge. In a 2016 post-conviction evidentiary hearing, Lake County Circuit Court Judge Daniel Shanes ruled that no new evidence was forwarded to warrant a new trial. At that hearing, it was disclosed that an X-ray disc of the child’s head had been given to the defense attorneys in a 98 percent reduced format and unusable for gradient variations.

“There is a serious unanswered question of who actually took the X-ray and compressed it,” said Paul DeLuca, Calusinski’s original defense attorney. “I would have had evidence to refute the many people who testified about seeing or feeling the fracture itself including Dr. Manuel Montez, the surprise witness, who … refused to view and consider the histology slides which show evidence of old prior bleeding.”

Her current defense attorney, Kathleen Zellner, filed a 337-page petition May 1, and made the summation to the Review Board “The post-conviction team has uncovered evidence that (it) was manipulated to mislead the defense team,” she later said. “At this hearing was Andrew Garrett, of Garret Discovery … his conclusion is that the skull X-rays were intentionally darkened to conceal that there was no skull fracture.”

Zellner had recently dismissed a habeas corpus petition which has languished in the Northern District Federal Court for the past five years, without a ruling. A previous appellate court ruling in Elgin, several years ago, also denied a new trial.

“Melissa did not receive a fair trial,” she said. “The trial judge repeatedly blocked defense efforts in presenting a false confession expert … not allowing an expert to testify that his test results showed (she) was highly suggestible to falsely confess, preventing (the mother) Amy Kingan from testifying about Ben’s chronic head-banging.

Defense attorney Kathleen Zellner (right) waits to address the Illinois Prisoner Review Board, during a July 9 hearing. Seated in the front row is Paul DeLuca (left), Melissa Calusinski’s original attorney, who also addressed the board. (Photo courtesy of Dr. Thomas Rudd)

There are numerous breaches of legalities enumerated in the petition, such as introducing false medical evidence of experiments on the child’s body, as Calusinski’s interrogation was proceeding. The trial judge also allowed certain physicians to present opinions without requiring them to produce prior reports, including Dr. Montez.

Although two assistant state’s attorneys represented the prosecution’s arguments against clemency, Lake County State’s Attorney Eric Rinehart issued a statement after the hearing.

“Our office has maintained a grant-funded conviction integrity unit, since 2021,” Rinehart said. “Like all such units across the country, we are open to new evidence at any time. Under nationally accepted standards, that evidence can be carefully and collaboratively reviewed with independent experts.

“In 2021 and 2023, new evidence led to two exonerations, both with false confessions,” he said. “In regards to Melissa Calusinski, no such new evidence has been presented to our conviction integrity unit, or in this clemency process.”

Dr. Rudd, the former county coroner, changed the cause and manner of death, from homicide to undetermined. “We now have two state’s attorneys who have denied there is new evidence. The previous acute anatomical bleed was 100 percent wrong … in fact, there was a chronic bleed causing the child’s death. This is a new and completely different finding.”

Zellner said, “We presented the affidavit of (medical examiner) Dr. Nancy Jones stating Ben (Kingan) was not murdered but had died from a previous injury which caused his brain to swell. Because of his chronic head-banging, when he threw himself backwards on the floor, in the presence of Nancy Kallinger (another daycare worker), it caused a final brain bleed.”

Calusinski is housed at the Logan Correctional Center in Lincoln. Should Pritzker not approve the petition, she will remain incarcerated until Dec. 30, 2042.