Defense witnesses testify in Calusinski's hearing for new trial

Defense attorney Kathleen Zellner questions Paul DeLuca, during Melissa Calusinski's appeal hearing Thursday in Waukegan. DeLuca was Calusinski's defense attorney when she was convicted of the murder of a toddler at a now-closed Lincolnshire day care center. Pool/Chicago Tribune, Stacey Wescott

Melissa Calusinski prepares to leave the courtroom Thursday after the morning session of her appeal hearing in Waukegan. Calusinski, 29, of Carpentersville, is serving a 31-year prison sentence for the murder of a toddler at a now-closed Lincolnshire day care center. Pool/Chicago Tribune, Stacey Wescott

Lake County Judge Daniel B. Shanes speaks to attorneys Thursday during Melissa Calusinski's appeal hearing in Waukegan. If Shanes rules in favor of Calusinski, her murder conviction would be vacated and a new trial set. If the request is denied, she would have the option to contest the ruling with a state appellate court. Pool/Chicago Tribune, Stacey Wescott

Melissa Calusinski listens to testimony during her two-day appeal hearing Thursday in Waukegan. Calusinski, who was convicted of the murder of a toddler and is serving a 31-year sentence, is seeking a new trial. Pool/Chicago Tribune, Stacey Wescott

Lake County Coroner Thomas Rudd says an attempt to do the right thing -- not politics -- is why he became involved in an effort to free a woman in prison for killing a toddler at a day-care center.

Rudd was among the defense witnesses to testify at a hearing Thursday before Lake County Circuit Judge Daniel Shanes, who will decide whether Melissa Calusinski, 29, of Carpentersville, should receive a new trial.

Calusinski was transferred from a downstate prison to attend the hearing, which continues Friday. She is not expected to testify.

The hearing is focused on new evidence defense attorney Kathleen Zellner said was uncovered after Calusinski was found guilty in 2011 of killing 16-month-old Benjamin Kingan of Deerfield two years earlier at the now-closed Minee Subee Day Care in the Park in Lincolnshire.

She is serving a 31-year prison sentence after being convicted of throwing Benjamin to the floor while working at the day-care center.

In his testimony, Rudd said he began looking into Calusinski's case soon after taking office in late 2012 at the request of her former defense lawyer, Paul DeLuca. He said an anonymous caller in June 2015 told Calusinski's father to find an enhanced set of X-rays at the coroner's office.

Rudd testified he found the X-rays after he was contacted by Paul Calusinski. He said evidence showed Benjamin died from an old head injury, not a skull fracture inflicted by Melissa Calusinski.

"We went from homicide to what we in our office call undetermined," Rudd said of the official change in the toddler's cause of death in July 2015.

Under cross examination by Assistant State's Attorney Scott Hoffert, Rudd said a desire to do the right thing has driven him in the case. However, Hoffert alleged politics has been behind Rudd's effort.

Hoffert said Rudd has had Calusinski supporters working on his November re-election campaign. Hoffert also introduced into evidence a photograph of Rudd wearing a campaign button and a "Free Melissa" button as he walked with Democratic Lake County state's attorney candidate Matthew Stanton in last Sunday's Gurnee Days parade.

"The Melissa Calusinski case is a major campaign issue for you," Hoffert told Rudd, who responded with a denial.

Dr. Robert L. Zimmerman, a pediatric neuroradiology specialist at Children's Hospital of Philadelphia, testified that a re-enactment of how prosecutors said Benjamin was thrown to the floor could not have led to the boy's fatal injuries.

After an appellate court upheld the original guilty verdict, Zellner filed a 211-page new trial request claiming a set of legible X-rays and proof Benjamin suffered the previous head injury each were found during an investigation, but never explored at Calusinski's trial. Those documents contend Benjamin's head swelled like "an old-fashioned light bulb" due to chronic concussions and not because of an acute injury, as pathologists previously had stated.

Lake County prosecutors responded by filing a 37-page motion to dismiss Zellner's request, claiming the new X-ray evidence was actually old evidence defense attorneys had in their possession but never electronically enhanced before the trial.

In addition to her family, Calusinski received support from Juan Rivera at Thursday's hearing in Waukegan. Rivera spent nearly 20 years in prison when he was freed in 2011 after an appellate court ruled he was wrongfully convicted three times of the 1992 rape and murder of an 11-year-old Waukegan girl.

"I'm here in support of her innocence," Rivera told the Daily Herald after the court proceeding. "I believe that there were errors made in her investigation and I support truth. And I believe she should not be incarcerated. She should have been home a long time ago. We're hoping that justice prevails this time."

If Shanes rules in favor of Calusinski, her murder conviction would be vacated and a new trial set. If the request is denied, she would have the option to contest the ruling with a state appellate court.