CHICAGO (CBS) — A former daycare center worker has won the first round of her bid for a new trial in the death of a toddler in Lincolnshire.
Melissa Calusinski’s attorneys hope a Lake County Judge will grant them an evidentiary hearing on X-ray evidence that they say contradicts the original autopsy ruling that 16-month-old Benjamin Kingan died of a skull fracture in 2009.READ MORE: Boys, 15 And 16, Shot And Wounded In West Englewood
Four years ago, Calusinski was convicted of murder in Kingan’s death, and was later sentenced to 31 years in prison. However, earlier this year, Lake County Coroner Dr. Thomas Rudd changed the official ruling on the cause of death from homicide to undetermined.
Calusinski’s lawyer said that’s not the only reason the conviction should be thrown out.
“Their case was built on no prior injury. We can now show there was a prior injury, and … we can show there was no skull fracture. That’s two huge pieces of evidence,” Kathleen Zellner said.
Lake County Judge Daniel Shanes said he would like to hear from the prosecution on Calusinski’s request for a new trial.
The Lake County State’s Attorney’s Office has said it intends to file a motion to dismiss Calusinski’s petition for a new trial, and prosecutors were given 90 days to make their case to throw out the petition for a new trial. Shanes will then determine whether to move forward with an evidentiary hearing, the last step before a new trial could be granted.
Zellner looked at Monday’s hearing as a win for Calusinski’s bid for a new trial.
“It could have been dismissed. Of course it’s possible, yeah. He could dismiss it, see, after the first stage, and most post-convictions are dismissed after the first stage. So we have advanced to the second,” she said.