Convicted Former Daycare Worker's Request For New Trial Moves On

WAUKEGAN, IL - Melissa Calusinski, the Carpentersville woman convicted in 2011 of murdering a 16-month old Deerfield boy at a daycare in Lincolnshire two years earlier, still has a chance to see her conviction overturned after a status hearing was held Friday in Lake County Court.

Judge Daniel Shanes granted Calusinski’s defense team, led by Attorney Kathleen Zellner, 60 days to file an answer to a recent prosecution request to dismiss a postconviction petition filed in June. Another status hearing will follow the defense’s answer on March 11, but Zellner says nothing is expected to be settled at that time.

“If they (the state) wanted to file a reply to our answer at that time they could, so that’s why this is not going to be decided in March,” Zellner told Patch via a phone interview after Friday’s hearing. Attorney Douglas Johnson filled in for the defense during court.

Related: Protesters Call For The Release of Melissa Calusinski

After the defense’s answer and possible reply by the state is heard, Shanes will decide if an evidentiary hearing will take place, which is when a decision would be made on whether or not Calusinski’s conviction will be vacated.

“If we win (at the evidentiary hearing), the conviction is vacated and then the State’s Attorney will decide on whether they would like to pursue a second trial,” said Zellner, who added that the history of law in Lake County suggests the state will retry Calusinski rather than allow the conviction to remain overturned.

Calusinski was convicted in 2011 of first-degree murder in the death of 16-month-old Benjamin Kingan at a Minee Subee daycare facility in Lincolnshire.

Related: Lincolnshire Daycare Death Profiled on ‘48 Hours’ as Possible Miscarriage of Justice

If the state does file a reply to the defense’s answer, Zellner suspects it will take “a much shorter period of time,” possibly 2-3 weeks, rather than the 90 days they needed to respond to the original postconviction petition.

The state’s recent motion to dismiss included statements that the X-rays presented by the defense as new evidence were actually the same ones the defense team had at the original trial and had just been digitally enhanced.

“Shame on the State’s Attorney for accusing our defense team of enhancing the X-rays,” Paul Calusinski, Melissa’s father, told members of the media following Friday’s court hearing. “The X-rays are new evidence.”

Zellner said she was not surprised at the state’s motion, and that their claims will be addressed in her response.

Related: Calusinski Thanks Her Thousands of Supporters

Paul Calusinski says his daughter is hopeful, “now more than ever,” about receiving a new trial.

“The Judge didn’t say no today. As long as he doesn’t use that two-letter word we are good,” according to Paul, who said his family plans on visiting Melissa in prison this weekend. She resides at Logan Correctional Center in Lincoln, Illinois.

“The delays have given us a lot more hope,” he said. “You need to have hope and patience. We have both and my daughter is ecstatic.”

According to Zellner, Melissa Calusinski is “a model prisoner.”

“She is doing fine and has a job at the prison,” the attorney said. “She is well-liked by the administration and keeps going.

“Of course she would like to get out, but she has really been a model prisoner.”