Updated: September 12, 2013 6:44AM
An expert whose testimony helped convict a woman of the murder of a 16-month-old toddler in her care at a Lincolnshire day care is now admitting he “missed” a pre-existing head injury — a development the woman’s attorneys are arguing should lead to a new trial.
In a surprising revelation, forensic pathologist Eupil Choi said in a sworn affidavit that the boy, Benjamin Kingan, “had suffered an old injury that pre-dated January 14, 2009,” the date of the boy’s death.
The affidavit is expected to be a key part of the legal ammunition that attorneys for Melissa Calusinski will use to try to get her a new trial. Calusinski, who lived in Carpentersville, was convicted of the little boy’s murder and in February 2012 was sentenced to 31 years in prison.
“We believe there is significant new evidence,” said one of Calusinski’s attorneys, Kathleen Zellner. “We are consulting with a number of experts and we are investigating every aspect of the evidence that was used to convict Melissa, including the viability of the medical evidence.”
What’s more, Choi’s reversal is supported by two other doctors who have reviewed the case — the newly elected Lake County coroner and the former Cook County Medical Examiner.
But Calusinski’s attorneys are in for a courtroom fight.
Lake County’s top prosecutor said that even if the new findings of Choi are correct, Calusinski should still be held accountable for Benjamin’s death if her actions, at the now closed Minee Subee in the Park day care center, exacerbated his injury.
Lake County State’s Attorney Mike Nerheim, elected to the job in 2012, has worked to restore the reputation of an office beset with several wrongful convictions, a record that has drawn national attention.
But in Calusinski’s case, Nerheim said he reviewed the new findings and believe they simply rehash the defense’s arguments at trial. Nerheim said he has found nothing to give him pause about the guilty verdict.
For Calusinski, who has been behind bars since her arrest in January 2009, the new evidence angered her, then gave her hope.
In an exclusive interview at the Logan Correctional Center in downstate Lincoln, Calusinski, now 26, said she was “shocked” when told about Choi’s new opinion. Choi did not return a message for comment Friday.
“I was very angry,” Calusinski said.
Choi’s reversal came after Lake County Coroner Thomas Rudd, who took office in December 2012, reopened Benjamin’s case early this year after speaking with Calusinski’s father and one of her attorneys, Paul DeLuca.
Rudd said he read the trial testimony, reviewed Choi’s findings, looked at the original slides, had new ones made and found the existence of a prior injury.
Rudd then asked former Cook County Medical Examiner Nancy Jones to review the materials. Jones wrote that “at the time of his death, Ben Kingan had a well-developed, organizing sub-dural membrane (an old collection of bleeding on the brain) that was missed by Dr. Choi during his initial postmortem examination.”
Following Jones’ review, Rudd delivered the new findings to Nerheim on May 8, but Nerheim did nothing.
Earlier this year, DeLuca asked Nerheim to put Calusinski’s case before the new board Nerheim formed to review cases in which a defendant’s guilt was is in question. Nerheim declined.
Nerheim formed the panel shortly after being elected in 2012, to restore the reputation of the office, which had been tarnished during the final years of Mike Waller’s years as Lake County state’s attorney. Four felony cases — Juan Rivera, Jerry Hobbs, Bennie Starks and James Edwards — had collapsed after DNA evidence suggested each man’s innocence. The men spent about 60 years total behind bars before being exonerated.
But Nerheim saw no reason to reopen Calusinski’s case.
On the day he died, Benjamin went from “emotionally fine to dead,” Nerheim noted. If Benjamin had a pre-existing head injury, he would have had a “logical decrease in functioning over time,” which was not seen, Nerheim said.
Even if there was a pre-existing injury, if Calusinski’s actions did something to exacerbate Benjamin’s injury, she should still be held legally responsible for his death, the prosecutor argued.
With Nerheim’s seeing no reason to act, Rudd asked Choi to look at Jones’ findings. Choi concurred with Jones, adding that “at the time of his death, Benjamin Kingan had suffered from a head injury prior to January 14, 2009, as evidenced by the well-developed, organizing subdural membrane present.”
It was Choi’s original findings at the autopsy that led police to question day care workers about their role in the boy’s death.
Calusinski was taken in for questioning, and according to evidence at trial, she told police that she intentionally slammed the boy’s head to the ground out of frustration when the children were crying,
Despite her confession, Calusinski has since maintained that she was wrongly targeted for Benjamin’s death. Both she and her lawyers have argued that she was coerced during a 10 hour interrogation, in part because of her low IQ.
Calusinski had been interrogated aggressively for more than six hours before offering the first hint of culpability in the boy’s death. Police offered several scenarios to Calusinski that could have happened and suggested several ways that she could have accidentally hurt the boy. Eventually, Calusinski went along with some of their scenarios and said Benjamin might have injured himself during one of his frequent and well-documented tantrums, when he threw his head back to the ground. When police said that could not have killed him, she suggested that he might have hit his head on a chair when he accidentally slipped from her arms.
“They told me to tell them what they wanted to hear, and I could go home,” Calusinski said. “They were feeding me stuff. I wish I was stronger.”
Zellner said that she felt that something was clearly wrong with Calusinski’s confession.
“She is one of the most passive, unaggressive, really sweet, vulnerable people you will ever meet. She would never hurt a child — she would never hurt anyone,” Zellner said.
At her sentencing, though, Judge Daniel Shanes said he had “no doubt the defendant voluntarily made that (confession).”
Nerheim agrees, saying he doesn’t believe she was coerced.
While at the trial the prosecutions’ experts, including Choi, insisted that the injury happened that day, medical experts for the defense testified that the bleeding found in the boy’s brain was from the pre-existing injury.
The boy’s parents, Amy and Andy Kingan, did not comment for the story. At Calusinski’s sentencing, Amy Kingan described how Benjamin’s death broke their hearts and said they blame Calusinski for his death.
In prison, Calusinski said, “I still feel really bad for (Benjamin’s parents). Their son is gone. It just feels bad . . . for me to be blamed.”
Calusinski described Benjamin as a sweet baby who loved attention. Benjamin acted silly and was starting to talk and walk.
“It made me smile because he would cry if I left the room,” Calusinski said.
The first night Calusinski spent in prison, she said she was “scared and angry.”
“I thought it was a bad dream,” she said. “I couldn’t believe I was in prison for something I didn’t do.”
Calusinski spends her days drawing, working at her job on the lunch line, watching TV and counseling other inmates on staying positive.
“Now I have no anger,” she said. “It’s happiness and impatience. I’m still waiting for that joyfulness to come out.”
When she gets out, which she said with confidence that she will, Calusinski wants to do “normal stuff” — start a family, get a job and do things on her own time.
“I want to get my life back together,” she said. “If people wouldn’t judge me, I would love to work with kids again. That’s my dream.”